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November 14, 2018  |  Written by Brenda C. Bass

Delta Stewardship Council Staff Determination Presents Hurdle for California WaterFix Project

Delta Stewardship Council (Council) staff has determined that the California Department of Water Resources’ (DWR) determination that the WaterFix project is consistent with the Delta Plan is not supported by substantial evidence, and has recommended that the Council remand the matter to DWR for reconsideration.  A workshop will be held on November 15-16, 2018, for the participating parties to address the Council regarding the staff determination, and respond to questions from the Council.  This remand recommendation, if adopted at the Council’s hearing scheduled for December 20-21, 2018, would require that DWR resubmit a Certification of Consistency with the Delta Plan for WaterFix, which could significantly delay the controversial project.

Commonly known as the “Twin Tunnels” project, WaterFix proposes to re-engineer the Sacramento-San Joaquin River Delta (Delta) by adding diversion points in the Sacramento River, at the north end of the Delta, and sending water southward in a pair of large underground tunnels.  In order to proceed with WaterFix, DWR must prepare and submit a satisfactory Certification of Consistency with the Delta Plan to the Council, which oversees projects taking place within the Delta and ensures that they comply with the Delta Reform Act and the Delta Plan’s directives.

Nine interested groups, consisting of primarily environmental groups and local governments in the vicinity of the WaterFix project footprint, challenged the Certification of Consistency filed for WaterFix several months ago.  The nine challengers raised numerous concerns regarding the evidence DWR submitted in an attempt to support its conclusions that WaterFix is consistent with the Delta Plan.  Following three days of hearings, Council staff ultimately found that DWR’s consistency determination lacks substantial evidence to support its findings with respect to numerous Delta Plan policies, and recommends remanding the Certificate of Consistency on these grounds.

First, Council staff found that DWR failed to use the most recent available information on climate change when developing the environmental impact report (EIR) for the project on which the Certification of Consistency was based.  Second, Council staff found that DWR could not establish that water suppliers that will receive water from the WaterFix project had sufficiently contributed to reducing their reliance on water supplies imported from the Delta by documenting and implementing local projects designed to reduce demands.  Regional self-reliance is a core principle of the Delta Plan.  Council staff did not agree with DWR’s assertions that compliance with these regional self-reliance requirements was infeasible.  Third, Council staff disagreed that DWR’s historical record of compliance with Delta water quality objectives and DWR’s modeling demonstrate compliance with Delta water quality objectives.  Finally, Council staff found that DWR’s determinations that WaterFix would not conflict with local land use plans, land uses in Delta communities, cultural and historic resources, and Delta recreational uses were not supported by substantial evidence.  Council staff further noted that, while DWR’s CEQA analyses may be adequate where it found such impacts to be significant and unavoidable, these conclusions did not automatically mean that DWR’s determinations with respect to these impacts are consistent with the Delta Plan.

For more information, please contact Brenda Bass at bbass@somachlaw.com or visit this website.

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