The delta tunnel project, intended to support water infrastructure in California, is estimated to cost around $20 billion and take over a decade to complete.
By Alan Riquelmy, Courthouse News Service
A Sacramento County judge on Thursday ruled in favor of several water districts and local governments over California’s planned delta tunnel project that would divert water from Northern California to the south of the state, saying that exploratory work can’t continue until the state completes a necessary certification process.
The decision by Superior Court Judge Stephen Acquisto is a win for the groups that had argued the state Department of Water Resources hadn’t completed all documentation required by the California Environmental Quality Act and complied with the Delta Plan.
The department had sought to perform geotechnical work, like initial drilling and the installation of monitoring equipment. It argued those actions were preliminary, and didn’t fall under the act’s requirements.
An attorney for the groups argued at a May hearing that drilling holes, along with other moves, did physically change the environment. That meant it fell under the act’s purview, and the department didn’t yet have the authority. On Thursday, Acquisto agreed.
“Boring holes 250-feet deep and digging trenches 1,000-feet long, 20-feet deep, and 3-feet wide, for example, certainly appear to be the type of activity that would cause ‘physical change in the environment’,” the judge wrote.
The project, called the Delta Conveyance Project, is a planned 36-foot wide, 45-miles-long tunnel, where Sacramento facilities would pump 3,000 cubic feet of water per second through the tunnel from the Sacramento River to the Sacramento-San Joaquin Delta to bolster drinking water resources. The project expected to take over a decade to construct at a cost of around $20 billion.
For Acquisto, the question about the injunction was one of statutory interpretation.
The Delta Reform Act creates a self-certification process for agencies to show that projects in the delta fall within the Delta Plan. If an agency is going to perform a “covered action,” it must produce written certification of sufficiency that the action is consistent with the Delta Plan.
The state sparred with local agencies in a May hearing before Acquisto over what is considered a “covered action.”
Arguing for the plaintiffs, attorney Louinda Lacey said the geotechnical actions fell under the bigger project umbrella. Because those geotechnical investigations were in the scope of a covered action, she said, they needed prior approval.
Elizabeth Sarine, an attorney with the state Attorney General’s Office, said a final environmental impact report, a much more complete document that already had received approval, made it unreasonable to require any additional green light.
The water department had argued that the geotechnical work was merely planning and design and such work didn’t fall under the definition of a covered action and needed no further approval. In fact, it needed to complete the geotechnical work before it could obtain the requested certification, it argued.
The judge disagreed.
“Just because the purpose of the geotechnical work is to gather information to aid in making the final design decisions, does not mean that it is not a component of the project that requires implementation,” Acquisto wrote. “The geotechnical work, just like the ultimate project construction, will likely have an impact on the environment in the Delta that not only requires CEQA review and approval but also certification of consistency with the Delta Plan.”
Department of Water Resources spokesperson Ryan Endean in a statement said his office disagrees with the judge’s decision and is weighing its options.
“We remain committed to the redesigned Delta Conveyance Project proposal, which is critical to protecting water access for millions of people amid intensifying climate impacts,” he added.
The judge also found that the water districts and local governments seeking the preliminary injunction would face harm if they didn’t receive relief.
The groups cited possible harm to living and buried tribal cultural resources, physical harm to property and the inability to appeal the department’s certification until after its geotechnical work.
The department argued it also would face harm if an injunction were granted. Those harms included up to $160,000 it would have to pay consultants, increased project costs because of delay and a higher risk of California’s water supply being harmed by a natural disaster.
Acquisto found that the groups losing the ability to appeal a certification before the department finished its geotechnical work was enough for an injunction.
Additionally, he disagreed with arguments made by the department that the groups couldn’t get injunctive relief because of faulty petitions.
Lacey, the attorney for the groups, praised the decision.
“We believe the trial court reached the correct result,” she said.
According to Lacey, the department must now submit its certification of sufficiency, which can be appealed. In that case, it goes to an administrative hearing.
Additional coverage …
Legal Analysis: Court issues preliminary injunction halting geotechnical investigations for the Delta Conveyance Project
“On June 20, 2024, the Sacramento County Superior Court stopped the California Department of Water Resources (DWR) from undertaking further geotechnical investigations implementing the Delta Conveyance Project (DCP) until DWR files a certification of consistency with the Delta Stewardship Council as required under the Sacramento-San Joaquin Delta Reform Act of 2009 (Delta Reform Act). The DCP will, among other things, include two new intake facilities on the Sacramento River in the north Delta near the community of Hood, and a concrete-lined tunnel and associated vertical tunnel shafts to convey water from the intakes 45 miles to the Bethany Reservoir Pumping Plant and Surge Basin located south of the State Water Project’s Clifton Court Forebay. The geotechnical investigations would have included thousands of borings, trenching, installation of monitoring devices, test pits, and other tests throughout the Delta and along the path of the proposed DCP facilities to gather information for further project design and construction. The DCP final environmental impact report identified over 70 significant impacts relating to the geotechnical activities and the need for over 90 related mitigation measures. … ” Read more from Somach Simmons & Dunn.
SEE ALSO:
- Court halts DWR’s geotechnical work for controversial Delta tunnel project, press release from attorneys Osha Meserve, Roger Moore, and Thomas Keeling
- State Water Contractors Respond to Narrow Interpretation of Law Creating Unnecessary Delays in Delta Conveyance Project, from the State Water Contractors
