Bay Delta Conservation Plan

In 2006, in response to increasing and anticipated future water shortages related to the rapid decline of the Delta ecosystem, a newly formed BDCP “steering committee” commenced public discussions to create a habitat conservation plan pursuant to section 10 of the federal Endangered Species Act (ESA). This plan could potentially also satisfy the more stringent requirements for a conservation plan under the California National Community Conservation Planning Act (NCCPA). As such, the BDCP would provide coverage for the incidental take of state and federally listed threatened and endangered species affected by existing or potentially modified United States Bureau of Reclamation Central Valley Project (CVP) and California Department of Water Resources State Water Project (SWP) operations in the Delta. Since the initial meetings in 2006, additional stakeholders have joined the steering committee in investing considerable time, money, and energy analyzing options to improve the Delta ecosystem and increase water supply reliability. Throughout 2007, the steering committee evaluated alternative conceptual water conveyance and ecosystem restoration opportunities for the Delta. One of the water conveyance options proposed and subsequently selected for consideration was an isolated conveyance facility to move water supplies around, rather than through, the Delta.

In 2008, the Department of Water Resources (DWR) and the United States Bureau of Reclamation, National Marine Fisheries Service, and United States Fish and Wildlife Service (as federal co-lead agencies) initiated the California Environmental Quality Act (CEQA) and National Environmental Policy Act (NEPA) environmental review processes for the potential actions contemplated by the BDCP steering committee. DWR held CEQA scoping meetings throughout California to gather public comments on the proposed actions in hopes of completing a joint draft environmental impact report (for CEQA compliance) and environmental impact statement (for NEPA compliance), referred to herein as the EIR/EIS, by June 2009.

Delta Water Agencies' Complaint

Prior to the release of a public draft EIR/EIS, the Delta Water Agencies filed the April 13, 2009 lawsuit challenging the proposed isolated conveyance facility, and the BDCP’s co-equal goals of water supply reliability and ecosystem restoration. The Delta Water Agencies named as defendants the BDCP steering committee, and each respective participant in the BDCP process, including but not limited to the United States Fish and Wildlife Service, United States National Marine Fisheries Service, United States Bureau of Reclamation, California Department of Water Resources, California Department of Fish and Game, environmental groups, agricultural interests, a power company, and urban and agricultural water purveyors.

The Delta Water Agencies allege an interest in the Delta by way of their constituent landowners’ collective ownership of approximately 268,000 acres within the Delta. Their lands comprise primarily agricultural lands relying on the in-Delta water supply to support irrigation and other water uses in the Delta. The Delta Water Agencies assert claims to riparian and appropriative water rights, and allege to have “prior vested rights” in relationship to the CVP and SWP. The lawsuit suggests that these interests will be harmed if certain “procedural and substantial deficiencies in the Defendants’ expedited and unlawful processes to finalize and approve the BDCP” are not corrected. The Delta Water Agencies expressed concern about the effects of the potential isolated conveyance facility on their water supplies.

The lawsuit asserts violations of CEQA, NEPA, NCCPA, and the California Bagley Keene Open Meeting Act (Open Meeting Law), and requests that the Court grant declaratory judgment in favor of the Delta Water Agencies. The Delta Water Agencies further seek preliminary and permanent injunctions to halt the BDCP process unless and until the BDCP is processed in a manner consistent with CEQA, NEPA, NCCPA, and the Open Meeting Law. The Delta Water Agencies also seek attorneys’ fees. The Delta Water Agencies take issue with the following aspects of the BDCP process:

• The selection of three federal co-lead agencies for NEPA purposes;
• The project description provided during the scoping process;
• The alleged failure to disclose conflicts of interest by the BDCP consultants;
• Allegedly misleading the public by combining the federal and state environmental review in a joint EIR/EIS;
• Engaging in the EIR/EIS process for the BDCP before providing a draft BDCP for public review and comment;
• The application of co-equal goals guiding development of the BDCP—water supply reliability and ecosystem restoration; and
• The alleged failure to provide notice, and post and send a proper agenda at least 10 days prior to any meeting.

The procedural claims asserted in this early lawsuit pose a potential stumbling block for the momentum currently fueling the BDCP efforts. If successful, the Delta Water Agencies’ lawsuit could cause delays in the BDCP process. In addition, with respect to the Delta Water Agencies’ concern about the potential isolated conveyance facility, this lawsuit provides a clear warning sign that the approval of any such conveyance strategy will inspire future litigation.

For additional information, please contact Jacqueline McDonald at jmcdonald@somachlaw.com. The Delta Water Agencies’ complaint can be viewed online at http://www.calsport.org/4-9-09ComplaintBDCP.pdf.

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