The appellate panel didn’t indicate how it might rule on the question of whether preliminary, geotechnical work on the tunnel is an “action” that is separate from the entire project.
By Edvard Pettersson, Courthouse News Service
The California Department of Water Resources on Tuesday asked a state appellate court to lift a preliminary injunction on geotechnical investigations for the controversial Delta Conveyance Project — a proposed 14-mile tunnel that would divert water from the Sacramento River to Central and Southern California.
Last year, Sacramento County Superior Court Judge Stephen Acquisto agreed with a group of local counties and water districts, as well as environmental and tribal organizations, that the preliminary work is a “covered action,” and the state agency must certify that the entire project complies with the requirements of the California Delta Reform Act.
The hourlong hearing before a three-judge panel of the Third Appellate District of the California Court of Appeal in Sacramento Tuesday revolved around the question of whether the proposed preliminary work itself, as opposed to the tunnel itself, is in fact a covered action — which the water agency has to self-certify is consistent with the so-called Delta Plan for the Sacramento–San Joaquin River Delta — even though the state’s Delta Stewardship Council had said it’s not.
Elizabeth Sarine, an attorney for the California Department of Water Resources, told the panel that since the injunction was issued, the agency had filed a certification with the council for the proposed geotechnical activities, which the petitioners had an opportunity to appeal. After a public hearing, the attorney said, the council dismissed those appeals.
“As the department tried to explain to the trial court, none of the Delta Plan regulatory policies apply to a limited subset of geotechnical activities that are at issue here,” Sarine said.
Moreover, she told the panel, the proposed geotechnical work is only a very small part of the geotechnical investigations that are included in the environmental impact report prepared for the entire Delta Conveyance Project and don’t involve work on levees, trenching or any of the more intensive activities described in the report.
“A lot of those other activities aren’t proposed yet and cannot proceed until the department gets approval and funding for construction,” Sarine said.
The Delta Stewardship Council was created by the 2009 Delta Reform Act to oversee a comprehensive, long-term, legally enforceable plan to guide how multiple federal, state, and local agencies manage the Sacramento-San Joaquin Delta’s water and environmental resources.
Ellen Garber, an attorney for the council, told the appellate panel that the proposed geotechnical work — which the council had found is not a covered action that requires certification for consistency with the Delta Plan — isn’t extensive or permanent enough to implicate any of the Delta Plan policies.
However, Associate Justice Louis Mauro noted, as the trial judge did last year, that the proposed preliminary activities appeared significant.
“It looks like there’s going to be many, many holes drilled up to 250 feet down, trenches and works — why is that not harm?” Mauro asked.
That original proposal was revised, according to Garber, for the certification of consistency that the council then decided wasn’t required for the more limited activities that don’t involve trenching.
Tom Keeling, an attorney speaking for the five Delta counties, local water agencies, and the environmental and tribal organizations, argued the revised proposal that the Delta Stewardship Council looked at was a “red herring,” according to Keeling, and didn’t make any difference to the trial judge’s analysis in support of the preliminary injunction.
“DWR elected not to make those geotechnical activities a separate, stand-alone project,” the attorney said. “They are part of the [Delta Conveyance Project], which is a covered action.”
Associate Justice Peter Krause wondered whether the Department of Water Resources’ “original sin” was to include the geotechnical work in the final environmental impact report for Delta Conveyance Project that it approved in late 2023 and that gave rise to the current litigation over the project.
Maybe, Krause said, the trial judge went astray by conflating the California Environmental Quality Act’s definition of a project in deciding that the preliminary work wasn’t a separate action from the entire Delta tunnel project.
Retired Associate Justice Rebecca Wiseman, who is sitting in pro tempore on the court, questioned if the panel shouldn’t give deference to the Delta Stewardship Council’s interpretation of whether the geotechnical work at issue is a covered action under the Delta Reform Act.
“The council, as I understand it, was created by the Delta Reform Act and charged with interpreting it,” Wiseman said. “As a result there’s legislation and authority that we should show deference to their interpretation to what it means.”
