The Delta Stewardship Council released a draft decision last Friday dismissing the appeal from several NGOs, Tribes, and Delta water agencies against DWR’s certification of consistency with the Delta Plan for the Delta Conveyance Project. The draft decision will be discussed and possibly adopted at the Council’s meeting on Thursday.
Background
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.
In October 2024, the Department of Water Resources submitted a a consistency determination for certain geotechnical activities related to data collection (cone penetration tests, soil borings, and water quality sampling within soil borings), and not for the entire project. DWR said the proposed geotechnical activities are preliminary investigations related to the Delta Conveyance Project’s planning and design, which is separate from the Delta Conveyance Project’s implementation. DWR submitted the certification of consistency based on the June 20, 2024 court ruling which enjoined DWR “from undertaking the geotechnical work before certifying consistency with the Delta Plan.
The basis of the appeal
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. Four appeals by about eighteen local agencies, conservation groups, and Tribes were filed before the deadline, arguing that submitting the consistency determination for the geotechnical activities is ‘piecemealing’ of the project which is inconsistent with CEQA. The appeals also cited inconsistencies with numerous Delta Plan policies pertaining to Tribes and environmental justice communities, lack of mitigation measures, potential impacts to agriculture, best available science, impacts to sensitive habitats, lack of adaptive management, and others.
In reviewing the certification in the appeals process, the Council applies what is known as the substantial evidence standard of review. Under that standard, the Council does not independently review the covered action to determine if it’s consistent with the Delta Plan; rather, the Council determines whether the certification of consistency is supported by substantial evidence in the record provided by the public agency that filed the certification. And importantly, the appellants have the burden to show that the certification of consistency is not supported by substantial evidence in the record.
Appellants make their case at the public hearing
The Delta Stewardship Council held a public hearing on December 19 to hear from the appellants, DWR, and the public. The main issue raised at the hearing was whether DWR filing a consistency determination for the geotechnical activities only and not the entirety of the project is piecemealing under CEQA, and therefore a violation of the Delta Reform Act.
Dante Nomellini, Jr, speaking on behalf of the South Delta Water Agency, insisted that it is. “The legal analysis is as straightforward and simple as it gets,” he said. “A lot of times, the law is vague. It’s unclear. But this is very logical and straightforward. What that means is when the legislature stated that a covered action is a project as defined under section 21065, the legislature knew that the project under that section meant the whole of the action, and therefore, it intended that a covered action include the whole of the action that comprises that covered action.”
The appellants also argued that there is no analysis of operations and impacts on environmental justice communities, Tribes, or the ecosystem. “There’s a need for applicants to consider and analyze the impacts on the rights and interests of tribes and environmental justice communities,” said Eric Buescher, Managing Attorney for San Francisco Baykeeper.
Bruce Blodgett, Executive Director of the Delta Protection Commission, said the geotechnical operations will occur in wildlife movement corridors and sensitive agricultural areas. “The disruption to those areas and the destruction and traffic that will cause. The people that will be trying to do those operations in an active agricultural operation or in an active wildlife corridor will create issues and problems.”
The appellants pointed out that while the scope of the Delta Stewardship Council’s review is limited to whether or not the certification of consistency was supported by substantial evidence in the record, the Council initially has to determine whether it even has jurisdiction to consider DWR’s certification of consistency.
“We contend the answer to that is no,” said Louinda Lacey. “What is happening here isn’t that the Department of Water Resources is trying to comply with the trial court’s ruling. They’re trying to do an end run around the trial court’s ruling.”
The appellants urged the Council to uphold the appeal and remand the consistency certification back to DWR to revise and present the manner that analyzes the full scope of the project and its impacts.
“The future of the Council is at stake in how it decides these appeals,” said Osha Meserve, representing County of San Joaquin, Central Delta Water Agency, and Local Agencies of the North Delta. “Whether it allows DWR to divide a covered action into multiple parts is a critical issue that will follow the Council after today. When this decision is issued, please carry out Delta policy and the mission duties and responsibilities that the legislature gave you.”
The Department of Water Resources responds
At the hearing, Andrew Finney, Geotechnical and Field Work Lead, DC Design and Construction Authority, spoke about the need for geotechnical tests to inform the planning and design. “It doesn’t involve any permanent facility whatsoever,” he said. “Nothing is left on the site. The work area that we’re talking about is 10ft by 100ft. That’s just an area that we set aside to park support vehicles and that kind of thing. The actual disturbed area we’re talking about with the soil boring is 5 to 8 inches in diameter. Once we’ve completed these boreholes and these CPTs, they are sealed in accordance with the requirements of DWR Bulletin 7481 and 7490, which are the soil boring and water well permit guidelines and standards.”
DWR attorney Chris Butcher said the appellants improperly conflated the Delta Reform Act and the California Environmental Quality Act. “The Delta Reform Act and CEQA are separate statutory schemes with separate objectives and procedures. Appellants urge that the Delta Reform Act requires this Council to always treat a covered action to mirror the project description in a certified environmental impact report. The Delta Reform Act includes no such requirement. This Council is an independent agency governed by its own authorizing act regulations and procedures. The CEQA statutes, regulations, and case law are not controlling on the Council’s interpretation of the Delta Reform Act.”
He pointed out that requiring an agency to file a certification at this early level of design is not required by the Delta Reform Act or the Council’s regulations and would not promote informed decision-making.
Mr. Butcher further noted that the Council’s own Delta Plan Program EIR also recommends that agencies conduct geotechnical activities during the design of projects at and near the locations of facilities to the depths necessary to characterize subsurface conditions. “Interpreting the Delta Reform Act to prohibit such data collection before certification of an infrastructure project would limit the ability of agencies to gather information recommended in the Delta Plan Program EIR prior to certification.”
“The Council does not weigh conflicting evidence and decide who has the better argument,” he said. “In short, the Council should deny the appeals because the appellants have not demonstrated that no substantial evidence in the record supports the Agency certification.”
Council issues draft determination
Last Friday, the Delta Stewardship Council issued its draft determination rejecting the appeal for DWR’s consistency determination for the geotechnical activities for the Delta Conveyance Project.
The Council distilled the appeal to two issues: Whether CEQA case law and guidelines govern certifications of consistency and prohibit the Department from submitting a separate certification of consistency for the geotechnical activities and whether the geotechnical activities are a covered action in the first place.
As to the first issue, the Council determined that CEQA is a separate statutory process and does not govern the certification of consistency process under the Delta Reform Act, except to the extent Council regulations specifically incorporate it. Council regulations do not prohibit the Department from submitting a separate certification of consistency for preliminary data collection activity, so the Council finds that the Department did not necessarily violate the Delta Reform Act by submitting a certification of consistency for the geotechnical activities separate from the rest of the Delta Conveyance Project.
Concerning the second issue, the Council relies on a two-part test to determine whether an activity is a covered action. The Council first determines whether the activity is a “proposed action” as defined by the Delta Reform Act. Then, it determines whether a Delta Plan regulatory policy covers the proposed action.
Applying the two-part test, the Council found that the proposed geotechnical activities are a “proposed action,” but it is not covered by a Delta Plan regulatory policy and, therefore, not a covered action. Accordingly, the appeals are dismissed for lack of jurisdiction and the Council makes no further findings.
In the draft determination, the Council notes that the decision does not make any findings concerning the Delta Conveyance Project, and this ruling does not constitute approval or rejection of that project. The Department must still file a certification of consistency for the Delta Conveyance Project.
What’s next
This is a draft determination. The Council will discuss the determination, hear public comment, and vote on whether to adopt it at their meeting on Thursday, January 23. Here is the meeting agenda.
If the Council adopts the determination, it will clear the way for DWR to begin the geotechnical investigations, but will likely face opposition for landowners if any of the proposed geotechnical activities require access to private property.
2025-01-23-item-3-attachment-a-attachment-1-draft-determination-decision-no-d20242