Seven Lawsuits Filed Challenging the Delta Stewardship Council’s Delta Plan and Environmental Review Document

Seven lawsuits challenging the Delta Stewardship Council’s Delta Plan and final environmental document  were filed by the June 17 deadline.  The groups challenging the Council’s actions represent a range of interests: export contractors, environmental and fishing industry groups, a city, and in-Delta residents.  Links to the parties’ complaints and/or petitions are provided here:

• San Luis & Delta-Mendota Water Authority et al. v. Delta Stewardship Council (Sacramento Co. Case No. 34-2013-80001500)
• City of Stockton v. Delta Stewardship Council (San Joaquin Co. Case No. 39-2013-00298188)
• State Water Contractors et al. v. Delta Stewardship Council (Sacramento Co. Case No. 34-2013-80001530)
• California Water Impact Network et al. v. Delta Stewardship Council (San Francisco Case No. CPF-13-513047)
• North Coast Rivers Alliance et al. v. Delta Stewardship Council (Sacramento Co. Case No. 34-2013-80001534)
• Central Delta Water Agency et al. v. Delta Stewardship Council (San Francisco Case No. CPF-13-513048)
• Save the California Delta Alliance v. Delta Stewardship Council (San Francisco Case No. CPF-13-513049)

The Delta Plan, adopted on May 16, 2013, by the Delta Stewardship Council, was developed in response to legislative mandate in the 2009 Delta Reform Act.  The Council certified its CEQA document, or Final Programmatic Environmental Impact Report (PEIR), on May 16, 2013.  The PEIR was prepared to evaluate the potential environmental impact of the proposed Delta Plan.

Although filed by disparate interests, the various lawsuits assert claims that fall into three general categories: (1) alleged CEQA violations, (2) alleged Delta Reform Act violations, and (3) alleged Public Trust Doctrine violations.  Because cases have been filed in three different counties, a threshold procedural issue will be whether all the cases should be coordinated before a single judge in one county.  

Delta Stewardship Council Adopts Delta Plan And Proposed Implementing Regulations

On Thursday, May 16th, the Delta Stewardship Council adopted the final Delta Plan and the proposed regulations for the implementation of the Delta Plan, and certified the final Programmatic Environmental Impact Report for the Delta Plan. The Delta Stewardship Council is an independent agency established under the Sacramento-San Joaquin Delta Reform Act Of 2009 (Water Code, § 85000 et seq.). The Delta Stewardship Council is responsible for developing and adopting a Delta Plan that furthers the coequal goals of providing a more reliable water supply for California and protecting, restoring and enhancing the Sacramento-San Joaquin Delta (“Delta”) ecosystem. (Water Code, §§ 85054, 85300.) The Delta Plan must “include subgoals and strategies to assist in guiding state and local agency actions related to the Delta” and may also “identify specific actions that state or local agencies may take to implement the subgoals and strategies.” (Water Code, § 85300.)

The Delta Stewardship Council will now submit the package of proposed regulations and a Statement of Reason to the State Office of Administrative Law (“OAL”). If the OAL approves those documents they will be submitted to the California Secretary of State. If approved by that office, the proposed policies in the Delta Plan become enforceable regulations.

The final Delta Plan is available here, the proposed implementing regulations are available here, and the Programmatic Environmental Impact Report is available here.

Governor Appoints Retired Judge Frank C. Damrell To Delta Stewardship Council

Governor Jerry Brown has appointment retired federal district court judge Frank C. Damrell Jr. to the Delta Stewardship Council.  Damrell will fill the seat previously held by Felicia Marcus, who was appointed to the State Water Resources Control Board last fall.  The Delta Stewardship Council issued a statement quoting Council Chair Phil Isenberg as stating:  “Judge Damrell is a terrific appointment. He is smart, focused and knowledgeable. Having a member with federal judicial experience will add substantially to our base of knowledge. He has a distinguished judicial record with significant decisions on environmental, commercial, employment, anti-trust and civil rights matters. We look forward having someone of Judge Damrell’s stature on the Council."

 

For more information on this development, please contact Hanspeter Walter or the KMTG Natural Resource attorney with whom you normally consult. 

 

Delta Stewardship Council Will Consider Proposed Final Draft Of Delta Plan

The Delta Stewardship Council (Council) will consider the proposed final draft of the Delta Plan at its September 13, 2012, meeting.  The Delta Plan is a comprehensive, long-term management plan for the Sacramento-San Joaquin River Delta (Delta), consisting of a mix of legally-enforceable “policies” and guiding “recommendations.”  State and local agencies undertaking actions covered by the Delta Plan will be required to file a certification of consistency with the Council, to ensure that the “covered action” is consistent with the applicable Delta Plan policies.

For more information concerning the Delta Plan, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

Related Story:

Delta Stewardship Council To Discuss Final Staff Draft Of Delta Plan

Delta Stewardship Council To Discuss Final Staff Draft Of Delta Plan

At today’s meeting, the Delta Stewardship Council (Council) will discuss the final staff draft of the Delta Plan, which was released on May 14, 2012. The Delta Plan is a comprehensive, long-term management plan for the Sacramento-San Joaquin River Delta (Delta), consisting of a mix of legally-enforceable “policies” and guiding “recommendations.” A comparison of the policies and recommendations contained in the final staff draft of the Delta Plan and the prior version is available here. State and local agencies undertaking actions covered by the Delta Plan will be required to file a certification of consistency with the Council, to ensure that the “covered action” is consistent with the applicable Delta Plan policies.

For more information concerning the Delta Plan, please contact Elizabeth Leeper or the KMTG attorney with whom you normally consult.

Related Stories:
Delta Stewardship Council to Conduct Field Hearings on Draft Environmental Impact Report for Delta Plan
Delta Stewardship Council Releases Draft Environmental Impact Report for Delta Plan
Delta Stewardship Council to Release Draft Environmental Impact Report for the Delta Plan on November 4
Delta Stewardship Council to Discuss Delta Plan on August 26
Delta Stewardship Council Releases Draft Version of Delta Plan

Delta Stewardship Council Releases Draft Environmental Impact Report for Delta Plan

As we reported yesterday, the Delta Stewardship Council has released the draft Environmental Impact Report ("EIR") for the Delta Plan. The EIR is now available on the Council's website.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related stories:

• Delta Stewardship Council to Release Draft Environmental Impact Report for the Delta Plan on November 4
• Delta Stewardship Council to Discuss Delta Plan on August 26
• Delta Stewardship Council Releases Draft Version of Delta Plan

Delta Stewardship Council to Release Draft Environmental Impact Report for the Delta Plan on November 4

The Delta Stewardship Council issued a public notice today advising that the Delta Plan Environmental Impact Report ("EIR") will be released tomorrow, November 4, 2011.

The Delta Plan, a mandate of SBX7-1 of California's landmark 2009 water legislation, requires that the Council develop, adopt and carry out a comprehensive long-term management plan for the Delta (“Delta Plan”). The Delta Plan must include measures that promote: (1) viable populations of aquatic and terrestrial species; (2) functional corridors for migratory species; (3) diverse habitats; (4) reduced threats; (5) more reliable water supplies; (6) improved water quality; and (7) the economic vitality of the State. It must also include recommendations promoting statewide water conservation, options for new and improved infrastructure relating to water conveyance in the Delta, and in-Delta disaster and risk reduction considerations.

According to the Council's public notice,

[T]he Delta Plan sets forth regulatory policies, and recommendations, that seek to influence the actions, activities and projects of cities, counties, and State, federal, regional and local agencies toward meeting the goals in the five topic areas. Examples of the types of actions/activities the Delta Plan seeks to influence include, but are not limited to: new or expanded water storage reservoirs; wetlands and riparian restoration; invasive species management; water flow patterns in the Delta; water, wastewater, stormwater and agricultural runoff water treatment; levee modification and construction; floodplain expansion; new/improved active and passive recreation opportunities in the Delta.

The draft Delta Plan is the proposed project to be evaluated in the EIR. The EIR will be available online at the Council's website, and we will also post a link to the EIR here on the blog.

The Council will accept public comments on the Delta Plan EIR until January 3, 2012. Comments may be sent via regular mail to "EIR Comments", Delta Stewardship Council, 980 Ninth Street, Suite 1500, Sacramento, California 95814. Comments may also be submitted electronically through the Council's website or via email with the subject line “Draft EIR” to eircomments@deltacouncil.ca.gov.

The Council will also accept public comments, either in writing or orally, at two meetings:

Thursday, November 17, 2011

1:00 p.m. to 4:30 p.m.

Sheraton Grand Hotel, 1230 J Street, Sacramento

Thursday, December 15, 2011

1:00 p.m. to 4:30 p.m.

California State Capitol, Room 447, Sacramento

A PowerPoint presentation prepared by the Council on the status of the development of the EIR may be found here.

For more information regarding this matter, please contact Eric Adair or the KMTG attorney with whom you normally consult.

Related stories:

• Delta Stewardship Council Releases Draft Version of Delta Plan
• Delta Stewardship Council to Discuss Delta Plan on August 26

Delta Stewardship Council to Discuss Delta Plan on August 26

The Delta Stewardship Council will meet on August 26, 2011, to receive a staff briefing on the fifth staff draft of the Delta Plan.  The meeting will be held in the Fresno/El Dorado room of the Holiday Inn Capitol Plaza, located at 300 J Street in Sacramento.

We previously reported on the release of the fifth staff draft of the Delta Plan in early August.  On Friday, staff will provide a report on the draft plan to the Council.  According to the Executive Officer's summary of the upcoming meeting:

Although [the draft plan] will be initially discussed by the Council at this meeting, we will have a more in depth review in September and the public comment period will continue through September 30, 2011. The pending Environmental Impact Report (EIR) is being reviewed by our attorneys and consultants, and scheduled for release on September 1, 2011. We anticipate a public hearing on the EIR in mid or late September. The 45-day comment period for the EIR will extend into October, 2011.

September, October, and November will be for final reviews and adjustments to the Delta Plan. As always, it is necessary to ensure the development process remains transparent and that all stakeholders are fully aware of the updated comment periods.

Public comments have begun to roll in on the fifth staff draft of the Delta Plan.  Comments have been received from the California Water Commission, the Regional Council of Rural Counties, and G. Fred Lee & Associates.

For more information concerning the Delta Plan, please contact K. Eric Adair from our office or the KMTG attorney with whom you normally consult.

California Department of Fish and Game Releases Draft Ecosystem Restoration Program for the Delta

On August 2, 2011 the California Department of Fish and Game (“DFG”) issued a draft restoration plan for the Sacramento-San Joaquin Delta, titled "Draft Ecosystem Restoration Program Conservation Strategy."  The Ecosystem Restoration Program ("ERP") identifies promising ecosystem restoration opportunities in the Sacramento-San Joaquin Delta and Sacramento and San Joaquin Valley Regions and provides the rationales for proposed restoration actions.

The ERP is designed to be part of a long-term comprehensive plan to restore ecosystem health and improve water management.  The ERP recognizes that the Delta Stewardship Council has also been directed to develop a Comprehensive Plan for the Delta ("Delta Plan") and notes that future coordination between DFG and the Delta Stewardship Council is planned.

DFG will accept comments on the current draft ERP until August 22, 2011.  Subsequently, it will develop a final draft in coordination with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

If you have any questions about the ERP, please contact Rebecca Akroyd from our office, or the KMTG attorney with whom you normally consult.

Related story: Delta Stewardship Council Releases Draft Version of Delta Plan

Related link: DFG Presentation to BDCP Public Meeting

Delta Stewardship Council Releases Draft Version of Delta Plan

On August 3, 2011, the Delta Stewardship Council issued a further (fifth) draft of the Delta Plan.  As we explained in our November 2009 Legal Alert on California's sweeping water legislation, the statutorily-created Delta Stewardship Council must adopt a Delta Plan by January 1, 2012, to accomplish ecosystem restoration and water delivery reliability for 25 million Californians and millions of acres of the world’s most productive farm land.  The 2009 water legislation describes coequal goals “of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem” and explains that the legislation’s purpose is to “establish a governance structure that will direct efforts across state agencies to develop a legally enforceable Delta Plan.”  The Delta Plan must include measures that promote: (1) viable populations of aquatic and terrestrial species; (2) functional corridors for migratory species; (3) diverse habitats; (4) reduced threats; (5) more reliable water supplies; (6) improved water quality; and (7) the economic vitality of the State.

The Delta Stewardship Council will accept comments on the current draft Delta Plan and the forthcoming Draft Environmental Impact Report (scheduled for release later this month) no later than September 30, 2011.  Council meetings will be announced on the Council's website and broadcast online.  Thereafter, two additional drafts of the Delta Plan are scheduled to be released in November and December 2011, respectively.  The final EIR is scheduled to be released in December 2011, with the seventh draft of the Delta Plan.

For more information concerning the Delta Plan, please contact K. Eric Adair from our office or the KMTG attorney with whom you normally consult.

Related links:

Fifth staff draft of the Delta Plan

Fifth staff draft Appendices

Fourth to fifth staff draft Policies and Recommendations Comparison Chart

Cover Letter from the DSC Executive Officer