On December 7, 2018, the California Department of Water Resources (“DWR”) withdrew its Certification of Consistency for California WaterFix, the proposed $17 billion project to construct two tunnels deep underground to convey water under, rather than through, the Delta. The certification, which was filed on July 27, 2018, represented DWR’s finding that California WaterFix was consistent with the Delta Plan, “a comprehensive, long-term management plan for the Delta” to advance the state’s coequal goals of improving water supply reliability and restoring and protecting the Delta ecosystem. Upon closing the public comment period nine appeals had been filed by environmental and fishing groups, as well as local agencies and counties in the Delta region, prompting review by the Delta Stewardship Council (“Council”). Council staff did not weigh in on whether the project is consistent, rather they evaluated whether DWR backed up its claim of consistency.
The Council held a public hearing on the appeals October 24-26, 2018 and a workshop, in which they presented the Council’s staff analysis on November 15-16, 2018. A public hearing and adoption meeting was slated for December 20-21, 2018 to receive comments and consider adopting the Council staff’s findings. On December 7, 2018, DWR withdrew the certification, and, as a procedural matter, Delta Stewardship Council Executive Officer Jessica Pearson dismissed the appeals because the matter was no longer before the Council.
The appeals argued there was not substantial evidence in the record to support a claim of consistency with 12 Delta Plan policies. Upon review, Council staff dismissed seven of them and agreed with the appellants on five of them, noting that there was not evidence in the record to support DWR’s claim of consistency with these policies. The five policies for which the Council staff agreed with the appellants include:
- Policy G P1(b)(1): Full Consistency Infeasible, but on the Whole the Covered Action is Consistent with the Coequal Goals
According to the Council staff report, DWR used this policy “as an alternative theory for consistency with numerous policies” but failed to provide analyses or arguments to support the assertion.
- Policy G P1(b)(3): Best Available Science
The policy requires the use of best available science and specifies for best available science: relevance, inclusiveness, 25 objectivity, transparency and openness, timeliness, and peer review. The Council staff report notes a number of issues where DWR failed to meet those criteria.
- Policy WR P1: Reduce Reliance on the Delta Through 34 Improved Regional Water Self Reliance
DWR argued that it is not seeking new or expanded water rights, but rather seeking to amend an existing right and add points of diversion. Appellants counter that DWR’s interpretation does not reduce the current reliance on the Delta, and therefore, is contrary to the plain language of the policy.
- Policy ER P1: Delta Flow Objectives
The policy requires projects to be consistent with the State Water Resources Control Board’s current flow objectives. DWR contends that its modeling and historic record show consistency. Appellants, however, made substantive arguments against several of the modeling assumptions, and the Council staff noted that historic record of compliance with not with the current, D-1641, standards, “…but with different standards during periods of drought, temporary urgency change petitions, and other orders…”
- Policy DP P2: Respect Local Land Use When Siting Water or 13 Flood Facilities or Restoration Habitats
In its Certification of Consistency, DWR noted that the state and federal agencies involved with siting the project facilities are not subject to local land use regulations. DWR also noted that inconsistency with local land use regulations is not itself an adverse environmental impact (which is an argument that is relevant to a CEQA determination). The Council staff stated that the policy is independent of state law, local land use regulations, and CEQA requirements. The Council further specified, “DP P2 is a directive to state and local public agency proponents of covered actions, and it specifically requires water management facilities, ecosystem restoration projects, and flood management infrastructure to ‘be sited to avoid or reduce conflicts with existing uses or those uses described or depicted in city and county general plans for their jurisdictions or spheres of influence when feasible, considering comments from local agencies and the Delta Protection Commission.’” The appellants countered DWR’s claim by citing five points where the project conflicts with local land use regulations.
Of the seven policies where the Council staff recommended denying the appellants’ claims, DWR had provided sufficient evidence for four: provide detail regarding consistency with Delta Plan mitigation measures, adaptive management, protect opportunities to restore habit, and avoid introducing invasive nonnative species or improving its habitat. Council staff stated that the remaining three—transparency in water contracting, restore habitats at appropriate elevations, and prioritize state investments in Delta levees and risk reduction—do not apply to the certification.
Because the Council requires a Certificate of Consistency for actions in the Delta, DWR will have to re-evaluate the project and file another certificate for California WaterFix to move forward.
Written by Marta L. Weismann