The Department of Water Resources (DWR) has submitted a Certification of Consistency with the Delta Plan to the Delta Stewardship Council for the Delta Conveyance Project, as required by the Delta Reform Act. This process ensures that any state or local agency proposing a “covered action” certifies that the action complies with the Delta Plan’s policies and regulations by submitting a formal Certification of Consistency to the Council.
The Certification focuses on the Bethany Reservoir alignment for the Delta Conveyance Project. If implemented, this project would create a dual-conveyance system for the State Water Project (SWP). The system would primarily rely on the existing south Delta pumping facilities while incorporating new infrastructure to divert water during high flows in the Sacramento River. According to DWR, the project is designed to meet all applicable water quality standards and regulatory requirements for endangered and threatened species.
By submitting the Certification, DWR has evaluated the project against the Delta Plan’s regulatory policies and determined that it aligns with the Plan’s requirements, and that the Certification is supported by an administrative record that includes environmental permits, engineering memoranda, public comments, outreach materials, and other documentation. If the Certification is appealed, this record will be submitted to the Delta Stewardship Council for review.
Now that the Certification has been posted by the Council, a 30-day appeal period has begun. During this time, individuals or organizations may file appeals if they believe the project is inconsistent with one or more Delta Plan policies and would significantly hinder the coequal goals or the implementation of a flood control program. Given the ongoing debate surrounding the Delta Conveyance Project, appeals are expected.
So, what does this mean in practice? Here’s a closer look at the Delta Stewardship Council’s appeals process and what happens next. This article is based on a July 2025 presentation to the Delta Stewardship Council by Deputy Executive Officer for Planning and Performance, Jeff Henderson.
What is a covered action?
When the Delta Reform Act was passed in 2009, restoration projects were underway, conveyance projects were proposed, and Delta communities required preservation and investment. Meanwhile, some parts of the Delta were urbanizing at an unprecedented pace, making it even more challenging to achieve habitat, water supply, and ecosystem restoration objectives.
In passing the Delta Reform Act, the legislature directed the Delta Stewardship Council to develop, implement, and legally enforce a single, unified blueprint to achieve the state’s coequal goals for the Delta of restoring the ecosystem, improving water supply reliability, and preserving the Delta as a place. That blueprint also needed to ensure that state and local agency actions in the Delta were consistent with it, so that they didn’t make achieving the coequal goals more difficult. The Delta Plan became that blueprint, and it now includes regulations that state and local agencies must demonstrate that they’re consistent with.
There are five criteria for a project to be considered a covered action, which are detailed in Water Code Section 85057.5:
1. Plan, program, or project as defined in Public Resources Code § 21065
2. Taking place, in whole or in part, within the Delta or Suisun Marsh
3. Carried out, approved, or funded by a state or local public agency
4. Will have a significant impact on achieving one or both coequal goals or implementing government-sponsored flood programs to reduce risks to people, property, and state interests in the Delta
5. Covered by one or more Delta Plan regulatory policies
The Council’s review applies to a subset of proposed actions by state or local agencies in the Delta that are covered by one or more of the 14 Delta Plan policies adopted as regulations, as shown in the table on the right. The agencies determine if their proposed action is covered, and if so, whether it is consistent with regulatory policies.
Each of these regulatory policies describes what it covers and then states what actions must be taken to be consistent with the Delta Plan. For example:
- Delta Plan policy ER P5 covers a proposed action that has a reasonable probability of introducing or improving habitat conditions for non-native invasive species. The policy requires the action to demonstrate how it has avoided or minimized the potential to establish or improve habitat for invasive non-native species, such as water hyacinth, nutria, or golden mussel.
- Delta Plan policy DP P2 covers a proposed action that involves the siting of water management facilities, ecosystem restoration, and flood management infrastructure. That policy requires that such an action demonstrate how it has sited the water management or ecosystem restoration project in a way that avoids or minimizes conflicts with existing or planned land uses.
Certification of consistency
A certification of consistency is a written statement of facts and findings by the agency that describes how its project is consistent with the applicable Delta Plan policies. In the certification of consistency, the agency makes detailed findings about the applicability of each regulatory policy to the action. For each applicable policy, it makes findings about the consistency of that action with the requirements of that policy.
The Department of Water Resources, local reclamation districts, flood control agencies, and cities and counties have submitted most of the certifications of consistency received to date. Most have been submitted for ecosystem restoration projects or levee projects.
The appeals process
After an agency submits a written certification of consistency using the Council’s online portal at coveredactions.deltacouncil.ca.gov, that posting starts a 30-day review period. Within that period, any person may appeal the certification to the Council on the grounds that the covered actions are inconsistent with one or more of the regulatory policies, and as a result, the action would have a significant adverse impact on the achievement of one or both of the coequal goals or implementation of a flood control program.
Mr. Henderson emphasized that an appeal must connect an alleged inconsistency with the Delta Plan to an adverse impact on the coequal goals or a flood control program.
The Council’s appeal requirements are spelled out in the California Code of Regulations, beginning at section 23 CCR 5020.
If no one appeals, a project the covered action can proceed.
What happens after an appeal is filed
After an appeal is filed, communication protocols go into effect immediately. Council members and staff are subject to ‘ex parte’ communication restrictions, meaning that the Council members and staff don’t talk with others outside the Council about the covered action or the appeals outside of a public hearing.
The Council will publish a notice of appeal within five days, informing the certifying agency, council members, the Delta Protection Commission, and the public about the appeals and explaining the process.
The certifying agency then files a copy of the record with the Council within five days. The record is essentially a collection of documents that the agency relies on to make its findings in the certification. After that, the Council will publish a notice for a public hearing and request written briefing documents from the appellants, the certifying agency, and the Delta Protection Commission. The briefs are meant to tie the appeals’ arguments made and the certification itself to the record that’s now available to the parties.
The role of the Delta Protection Commission
The Delta Protection Commission, as another Delta agency, has a role in the appeals proceedings, as outlined in Section 5028 of the Council’s appeals procedures. The Commission may submit written comments on issues raised by an appellant in an appeal and whether the certification of consistency is supported by substantial evidence in the record before the certifying agency. No new appeal arguments can be raised at this point.
The Commission may also make an oral presentation to the Council regarding issues raised by an appellant in an appeal at the hearing. The Council considers the comments and presentations submitted by the Commission as those of an expert agency in matters that may affect the unique cultural, recreational, and agricultural values of the Delta when preparing, considering, and adopting its findings.
The public hearing
The public hearing is usually an agenda item at a Council meeting. It must happen within 60 days of the appeal. Council staff will present the covered action, the certification, and the appeals to the Council in the hearing. Then the certifying agency, the appellants, and the Delta Protection Commission appear before the Council to present their case and/or address issues that are raised in the appeals. At this time, no new issues can be raised.
Council staff may provide questions to the parties ahead of the hearing to help concentrate discussions on unresolved issues requiring further consideration.
What does the Council consider?
Mr. Henderson emphasized that the Council’s process is not an approval process; it is an appellate process that is limited to the issues raised on appeal. The Council only has appellate authority and oversight.
“We don’t approve projects, we don’t deny projects, and we don’t condition projects,” he said. “Those projects are already approved by other agencies, and our role is as framed by appeals, to determine if evidence in the record supports the agency’s finding that the covered action is consistent with the Delta Plan.”
At all times, there’s one central question: Is there substantial evidence in the record that supports the agency’s certification that the covered action is consistent with an applicable Delta Plan regulation?
“Boiled down, this is, at the end of the day, a deferential standard,” said Mr. Henderson. “The certification is presumed to be valid unless the lack of evidence says that it’s not. Thus, the answer to the one question, ‘Is there substantial evidence in the record that supports the agency’s certification that the covered action is consistent with an applicable Delta Plan regulation? It’s the appellant’s burden to prove that the answer to that question is ‘No.'”
The Council’s decision
The Council’s decision is essentially a written statement with specific findings for each policy and, within each policy, for each issue raised on appeal, one of three outcomes:
- Dismiss appeals that do not identify an appealable issue, do not provide required information, or are outside Council’s jurisdiction; or
- Deny appeals if evidence in the record supports the certification; or
- Remand the matter to the agency for reconsideration because the certification is not supported by substantial evidence in the record.
A majority vote of the voting membership of the Council is required to approve a decision. Once approved by the Council, a decision is subject to judicial review if it’s challenged.
Mr. Henderson noted that some of the Council’s more complex appeals have involved all three types of findings. “For example, on Lookout Slough, we dismissed some appeals, we denied some appeals, and we remanded some matters for reconsideration,” he said.
What happens after the Council’s decision? If the Council dismisses or denies all of the appeals, the covered action may proceed. If there’s a remand, the covered action can’t proceed until the Council’s findings are addressed in a revised certification and any further appeal issues are resolved; the scope of certification and appeals in a revised certification would be limited to matters that are remanded by the Council and or changes to the covered action.
Covered action appeals by the numbers
Since 2013, 58 certifications of consistency have been filed. Most certifications – roughly 88% – have been for restoration, habitat improvements, or levee projects.
Six of those certifications have been appealed, with 21 unique appeals filed across them:
| Lower Yolo Ranch Restoration Project | C20203 | Westlands Water District | 04/07/2020 | Appealed – Appeal Withdrawn | 06/12/2020 |
| 2024-2026 Proposed Geotechnical Activities | C20242 | Department of Water Resources | 10/08/2024 | Appealed – Appeal(s) Denied | 01/23/2025 |
| Lookout Slough Tidal Habitat Restoration And Flood Improvement Project | C202110 | Department of Water Resources | 12/30/2021 | Appealed – Appeal(s) Denied | 04/28/2022 |
| Smith Canal Gate Project | C20188 | San Joaquin Area Flood Control Agency | 11/02/2018 | Appealed – Appeal(s) Denied | 03/21/2019 |
| Lookout Slough Tidal Habitat Restoration And Flood Improvement Project | C20215 | California Department of Water Resources | 02/22/2021 | Appealed – Covered Action Remanded to Agency | 07/16/2021 |
| California WaterFix | C20185 | California Department of Water Resources | 07/27/2018 | Appealed – then Covered Action Withdrawn | 12/07/2018 |
The Covered Actions Portal
The Delta Stewardship Council’s Covered Actions portal provides access to key documents, details on filed appeals, and the current status of those appeals. You can explore the portal at https://coveredactions.deltacouncil.ca.gov/?page=1.
The Delta Stewardship Council’s Administrative Procedures Governing Appeals
