The Department of Water Resources filed its Certification of Consistency for the Lookout Slough Tidal Habitat Restoration and Flood Improvement Project on February 22nd, 2021, finding that the project is consistent with the Delta Stewardship Council’s Delta Plan. On March 24th, appeals were filed by Liberty Island Access, Solano County Water Agency, Reclamation District 2060 & Reclamation District 2068, and the Central Delta Water Agency.
The Delta Reform Act requires any State or local agency proposing to undertake a covered action must submit to the Council a written certification of consistency with the Delta Plan. The legislation basically defines a covered action as a plan, program, or project that a state or local agency proposes to do within the Delta and Suisun Marsh that is covered by one or more provisions of the Delta Plan.
Any person – be it a Council member, an agency, or a member of the public – who believes a covered action is inconsistent with the Delta Plan and will impact the achievement of the coequal goals may appeal a certification of consistency to the Council within 30 days of the submission date. The appeal paperwork must clearly state the basis for the claim that the covered action is inconsistent with the Delta Plan.
What is being appealed
The appeals cite many issues. Below is sampling of the issues being appealed.
Liberty Island Access
The appeal from the group, Liberty Island Access, is concerned with impacts to recreation. The appellants state that the proposed project will eliminate all public recreational land-based access to Liberty Island and Shag Slough and that it fails to consider or propose mitigation measures for such loss of recreation use.
The Solano County Water Agency states that the project does not support the coequal goals; rather, it would improve conditions for the Central Valley Project and State Water Project operations at the sole expense and detriment of Solano County interests. They state that there are numerous existing agricultural and urban supply intakes that would be impacted with respect to water quality, endangered species, and the corresponding cumulative adverse impacts of more recent restoration projects. They also point out that while the North Bay Aqueduct represents only 2% of the SWP, the vast majority of habitat restoration for the SWP is being implemented within or close to Solano County.
The appeal letter states that Solano County Water Agency is not necessarily seeking to stop the project; Instead, they would like to work collaboratively with the Council, Department of Water Resources (DWR), and/or other agencies to meet coequal goals throughout the entire Delta. Additionally, the agency is looking for a firm, committed support to help implement the North Bay Aqueduct Alternative Intake Project, one of the Delta Plan’s recommendations.
Reclamation District 2060 & Reclamation District 2068
Among the concerns stated in their letter, Reclamation Districts 2060 and 2068 say the Lookout Slough project will have direct adverse impacts on water quality, impacting intakes critical to agricultural and municipal diverters who will be forced to address this degradation.
The reclamation districts note that the project aims to increase populations of endangered species, which, if successful, could impede their ability to divert water, ultimately requiring costly (and potentially infeasible) upgrades to infrastructure. The habitat created by the project will be suitable for agricultural pests and attract increased populations of geese that can decimate grass being grown for livestock, the most abundant crop in their districts.
They also say there would be significant impacts on flooding, flood storage, and emergency access that are not being mitigated, and the adaptive management plan fails to identify a reliable long-term source for the project.
The Central Delta Water Agency states that the project does not use best available science as defined in the Delta Plan. As an example, the draft EIR analysis of water quality implications of the project is based on model simulations for only one year, 2009. They point out that water suppliers served by the SWP will receive water as a result of the project because the project is a condition of water export from the Delta, but DWR has not provided any information as to how its water contractors are reducing reliance on the Delta. This covered action increases, rather than reduces, reliance on the Delta.
This project would significantly affect flow in the Delta. It would also provide open water space and emergent marsh which may allow non-native species to proliferate, further increasing their overall presence in the region. The creation of levee breaches will create new ambush opportunity locations which will favor nonnative predatory fish. The project does not respect local land uses as it displaces existing agricultural uses. It also misdirects the use of Proposition 1 funds intended for improvement existing levees most impacted by potential earthquakes and sea level rise.
The Council will issue a preliminary determination and schedule a public hearing. The appellant, the state or local agency, the Delta Protection Commission, or any other person may testify before the Council regarding an appeal, either orally or in writing.
The Council has 60 days to decide on the appeal after the hearing and will make specific written findings defining the covered action under review. The Council can either deny the appeal or remand the matter back to the agency, finding that the certification of consistency is not supported by substantial evidence in the record.
By my count, in the history of the Council, four appeals have been filed. The Council has held two public hearings, both in 2018, one for the California Water Fix project and one for the Smith Canal Gate Project. After the California Water Fix hearing, the Department of Water Resources withdrew its consistency determination. The Council ultimately denied the Smith Canal Gate Project appeal, and it was allowed to go forward.