More Appeals Involving the Delta Conveyance Project
The California Department of Water Resources (“DWR”) submitted a certification of consistency for geotechnical activities based on a court ruling earlier this year relating to the well-known project, the Delta Conveyance Project (“DCP”). Four appeals have been filed by about eighteen local agencies, conservation groups, and Tribes, based on DWR’s recent consistency determination.
These appellants allege inconsistencies with Delta Plan policies and contend that DWR is piecemealing the project, which is inconsistent with the California Environmental Quality Act (“CEQA”). The appeals process is pending before the Delta Stewardship Council, and will focus on whether substantial evidence supports certification. All appeals must be resolved for the project to move forward. (All appeals were filed November 7, 2024 and have the following Delta Stewardship Council Appeal Numbers: C20242-A1, C20242-A2, C20242-A3, and C20242-A4.)
For a certification of consistency with the Delta Plan, various requirements must be satisfied. These requirements ensure that the covered action aligns with the objectives and regulatory policies of the Delta Plan. First are detailed findings, including each of the regulatory policies identified in the California Code of Regulations, Title 23, sections 5002 through 5013. A second requirement is identification of infeasibility. If full consistency with all relevant regulatory policies is not feasible, the certification must clearly identify the areas where consistency is not feasible, provide an explanation of the reasons why it is not feasible, and explain how the covered action is nevertheless consistent with the coequal goals overall. Third are mitigation measures. For actions that are not exempt from CEQA, the certification must include all applicable feasible mitigation measures adopted and incorporated into the Delta Plan or substitute measures that are equally or more effective. A fourth requirement is to use the best available science. The certification must document the use of best available science relevant to the purpose and nature of the project. A fifth critical requirement is to ensure consistency with specific policies. The certification must demonstrate consistency with specific policies such as avoiding the introduction of invasive nonnative species and respecting local land use when siting water or flood facilities or restoring habitats.
The DCP is among the most complex water infrastructure projects in the nation and likely the world. Numerous regulatory approvals are required before construction, much less operations, can commence. Often reported on are the CEQA challenges to the DCP and the water rights process pending at California’s State Water Resources Control Board, which is set for hearings starting during February 2025. The appeals as described above fly below the proverbial radar more than these other proceedings, though the appeals raise important issues to be resolved so as to ensure compliance with existing law, and ultimately the rights of all stakeholders.