The petition alleges bias and legal error favoring controversial Delta tunnel project
Sacramento County, San Joaquin County, the City of Stockton, Central Delta Water Agency, Sacramento County Water Agency, and Sacramento Area Sewer District (Petitioners) have sued the Delta Stewardship Council (Council) in Sacramento County Superior Court. The new suit seeks to invalidate a January 2025 Council decision regarding the controversial Delta Tunnel that also has broad consequences for other actions under the 2009 Delta Reform Act (Act). The Delta and its communities, the public interest requiring agency compliance with the Act, and the integrity and reputation of the Council all would suffer if the decision is allowed to stand.
The case arises out of a 2024 lawsuit challenging the California Department of Water Resources’ (DWR) Delta Conveyance Project (DCP or Delta Tunnel). In May 2024, the trial court stopped DWR from proceeding with geotechnical activities that DWR admitted were a key component of the Delta Tunnel project. DWR has admitted the Delta Tunnel is a “covered action” under the Act. Under the Act, a project proponent may not implement a covered action before certifying the whole project is consistent with the Delta Plan adopted by the Council. DWR had not done so.
After the trial court issued a preliminary injunction preventing DWR from undertaking the geotechnical activities, DWR attempted to sidestep the court’s ruling by submitting a smaller part of DCP geotechnical activities to the Council. In doing so, DWR asserted that the activities were not a covered action. The Petitioners, along with other Delta public agencies, tribes and environmental organizations, challenged DWR’s attempt to carve off a part of the DCP and bypass the Act’s requirements. In January 2025, the Council agreed there was no covered action, and thus it lacked jurisdiction in the matter. The Council nevertheless issued a 32-page decision that blessed DWR’s desire to chop the DCP into smaller pieces to avoid regulatory oversight.
In the new lawsuit, Petitioners accuse the Council of abusing its discretion and engaging in a biased and results-oriented process in favor of the controversial Delta Tunnel. The Council’s bias was confirmed by the fact that a Council staff member who participated in the certification appeal had previously filed a declaration supporting DWR’s opposition to the preliminary injunction in the trial court, and by the Council’s decision to issue a lengthy decision interpreting the Act in DWR’s favor despite having no jurisdiction to do so. Moreover, neither DWR nor the Council disclosed their communications concerning the Delta Tunnel and the geotechnical activities in private “early consultation” meetings preceding the Council’s decision. The Council staff’s presentations at the hearings also were skewed in favor of DWR’s position.
In addition to invalidating the Council’s decision on the DCP geotechnical activities, the lawsuit seeks a court decision confirming the Act prohibits “piecemealing” of covered actions for certification.
SEE ALSO:
The Council’s web page regarding the appeals that are the subject of the lawsuit is here: Geotech Appeals
Contacts:
Kelley Taber, Sacramento County, City of Stockton, Sacramento County Water Agency, and Sacramento Area Sewer District, ktaber@somachlaw.com
Osha Meserve, San Joaquin County and Central Delta Water Agency, osha@semlawyers.com
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