The appeals allege numerous inconsistencies with Delta Plan policies and say piecemealing the project is inconsistent with CEQA
Last Friday, the Delta Stewardship Council reported that four appeals had been filed for the Department of Water Resources (DWR) certification of consistency with the Delta Plan for the geotechnical activities associated with the Delta Conveyance Project. The draft certification only concerns certain geotechnical activities related to data collection (cone penetration tests, soil borings, and water quality sampling within soil borings), and not for the project in its entirety.
Four appeals by about eighteen local agencies, conservation groups and Tribes were filed before the deadline.
The appeals process
The 2009 Delta Reform Act created the Delta Stewardship Council and charged the Council with preparing a long-term management plan (the Delta 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 Delta Reform Act requires that any state or local agency doing a project in the Delta that meets the definition of a ‘covered action’ certify that those actions they are taking are consistent with the Delta Plan. Any person who feels that a proposed action is inconsistent with the Delta Plan and that it will significantly impact the achievement of one or both of the coequal goals may file an appeal with the Council.
A big issue: Is this piecemealing the project?
DWR did not initially plan to submit a certification of consistency for geotechnical activities but did so based on the June 20, 2024 court ruling which enjoined DWR “from undertaking the geotechnical work described in Chapter 3 of the Final Environmental Impact Report,” which includes the 2024-2026 Proposed Geotechnical Activities, before certifying consistency with the Delta Plan.
DWR believes the proposed geotechnical activities to be preliminary investigations related to the Delta Conveyance Project’s planning and design, which DWR says is separate from the Delta Conveyance Project’s implementation. However, all of the appeals reject this as ‘piecemealing’ of the project which is inconsistent with CEQA. They say the entire Delta Conveyance Project needs to be considered.
The appeal from the SF Baykeeper, Restore the Delta, the CSPA, numerous Tribes and other conservation groups (Baykeeper, et al) note that DWR’s certification asserts that the “covered action” has changed. When DWR certified the final EIR under CEQA in December 2023, the covered action was officially defined by DWR as the construction and operation of the Tunnel, including the geotechnical activities necessary to investigate, plan, and ultimately build it. “Now, according to DWR, the “covered action” has changed,” the appeal sates. “Rather than “the whole of” the CEQA project, DWR asserts that the only action relevant for the Council’s consideration is the Proposed Geotechnical Activities—a slice of a slice of what the covered action was just ten months ago.”
The South Delta Water Agency says that DWR must certify the entirety of the DCP. If the Department wants to substantially change the project as a result of the investigations, it must then file a supplemental certification to address those changes.
What else is being appealed?
Baykeeper et al. also note that the Delta Plan’s existing policy objectives leave out Tribes and environmental justice communities and that the Council has been too slow in updating its policies to incorporate these interests.
The County of San Joaquin, Central Delta Water Agency, and Local Agencies of the North Delta object to the ‘continued planned ex parte communications’ between DWR and the Council. They note that separately, DWR is also participating in separate early consultation with Council staff on the Delta Conveyance Project; the parties contend that due to the close connections between the geotechnical activities and the overall Delta Conveyance Project, it is not possible to continue to have early consultation while appeals are pending on the geotechnical activities.
The County of Sacramento, Sacramento County Water Agency, Sacramento Area Sewer District, and City of Stockton (County of Sacramento et al) appeal expresses concerns about the lack of mitigation measures and potential impacts on agriculture as a result of the geotechnical activities. The Delta Plan requires buffers to protect agricultural operations, but DWR does not acknowledge the requirement nor propose mitigation. “There will be numerous conflicts with these agricultural land uses associated with, but not limited to, air pollution, noise, traffic, issues pertaining to roadway safety and access, and impacts to groundwater quality…. It is impossible to drill hundreds of holes in and around active agricultural land without conflicts.”
The South Delta Water Agency points out that DWR fails to adopt mitigation measures and use best science to address the impacts from improperly sealed boring and CPT holes, which can adversely impact levee integrity. They further note that improperly sealed boring or CPT holes can adversely impact groundwater quality and surface water quality. The County of Sacramento, et al further notes that the concentration and extended timing of borings and CPT activities planned will affect the implementation and benefits of the Harvest Water Project currently under construction, and impact foraging for special-status species protected under the Migratory Bird Treaty Act.
The appeals also cite inconsistencies with numerous other Delta Plan policies, including using best available science, avoiding introductions of non-native species, avoiding sensitive habitats, respecting local land use, lack of adaptive management, and others.
So what’s next?
The Council is required to hold a public hearing within 60 days and issue a decision within 60 days after that. The appeal process will focus on whether substantial evidence 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 a revised certification.
In order for the project to move forward, all appeals must be resolved.
For more information and to access all the documents related to this appeal, click here.
Notice of Appeal_GeoTech_2024-1
