Draft determination upholds portions of the appeal; denies other parts
Last Friday, the Delta Stewardship Council posted for review and comment the Staff Draft Determination for the Appeals on the Certification of Consistency for the Lookout Slough Tidal Habitat Restoration and Flood Improvement Project. The Staff Draft Determination is a mixed decision, supporting portions of the appeal while denying other parts.
Background
The Lookout Slough project is a multi-benefit project to restore approximately 3,165 acres of tidal wetland habitat and create over 40,000 acre-feet of transitory flood storage in the Cache Slough Complex within Solano County, adjacent to the Yolo Bypass. These properties are currently used for irrigated pasture, recreation, and seasonal grazing.
The project benefits include potential rearing and spawning habitat for Delta smelt, habitat for other aquatic and terrestrial wetland-dependent species, and increased food availability for Delta Smelt and other fish species. The project is also intended to increase flood storage and conveyance, increase the resilience of levees, and reduce flood risk.
In February of 2020, the Department of Water Resources (DWR) filed a Certification of Consistency for the Lookout Slough Tidal Habitat Restoration and Flood Improvement Project as required by the Delta Reform Act, finding that the project is consistent with the Delta Stewardship Council’s 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. Subsequently, on March 24th, Liberty Island Access, Solano County Water Agency, Reclamation District 2060 & Reclamation District 2068, and the Central Delta Water Agency filed appeals, citing impacts to recreation, water quality impacts to agricultural and urban water supply intakes, significant impacts to flood risk and emergency access, and impacts to endangered species. Some of the appellants also noted that the project benefits water project operations at the expense of Solano County, increases rather than reduces reliance on the Delta, and misdirects use of Prop 1 funds intended to improve existing levees.
In May of 2021, the Council held a two-day public hearing on the appeals in which DWR, the Delta Protection Commission, and the appellants offered letters and oral presentations; public comments were heard. Upon conclusion of the hearing, the Presiding Officer directed Council staff to prepare draft findings regarding the appeals based on the record and comments received. The staff’s proposed draft findings for consideration were released last Friday. The 10-day public review period will conclude at 12:00 pm on June 28th.
The findings
The staff determination is mixed.
The staff determination agrees with the appellants that consistency with Delta Plan policies to use best available science concerning the methods to estimate recreational use and to respect local land use while siting habitat restoration is not supported by substantial evidence in the administrative record. However, the staff determination denied portions of the appeal regarding five Delta Plan policies that address mitigation measures, best available science with respect to water quality, adaptive management, and invasive species impacts.
Some issues cited in the appeal were dismissed because they were not appealable or within the Council’s jurisdiction, such as improper use of Prop 1 funds and disproportionate impacts and demographic considerations. The staff determination also notes that a covered action must comply with the regulations of the Delta Plan; recommendations in the plan are not enforceable as they have not gone through the rulemaking process required by the Administrative Procedure Act. Therefore, recommendations cannot be used to assess the consistency of any covered action with the Delta Plan as to do otherwise would improperly convert the recommendations into underground regulations.
Four other Delta Plan policies cited in the appeals were denied because they do not apply to this project.
So bottom line, the determination is to remand the matter to the Department for reconsideration on the issues under Water Code section 85225.25.
Next steps
On July 15-16, 2021, the Council will conduct a public hearing to consider the adoption of the Staff Draft Determination and make its findings on the appeals.
To comment on the staff determination, submit written comments electronically to: LookoutSloughCert@deltacouncil.ca.gov and copy the service list. The Staff Draft Determination is available to view or download below. The staff determination and other documents are available on the Council’s covered actions portal.
To be considered for the revised Staff Draft Determination presented to the Council at the July 15-16, 2021 hearing, written comments on the Staff Draft Determination must be received no later than 12:00 pm on June 28th, 2021.
June 18 2021 Staff Draft Determation C20215 Lookout Slough-1
