Court rules against Jerry Brown’s Delta tunnels plan

  • Published on May 19th, 2016

By Dan Bacher

In a favorable decision for Delta advocates, Sacramento Superior Court Judge Michael P. Kenny on May 18 westlands water district is one of the delta tunnels waterfix fundersissued a complex 73-page ruling on challenges to the Delta Stewardship Council’s Delta Plan, a plan that embraces Governor Jerry Brown’s California Water Fix to Build the Delta Tunnels.

Although the decision upheld the Council’s regulatory authority, Kenny said the Delta Plan didn’t meet the requirements of the Delta Reform Act of 2009 by failing to provide sufficiently quantifiable performance measures. The Court also said the plan also did not adequately promote alternatives to improve the way water projects convey water across the Sacramento-San Joaquin Delta, the largest estuary on the West Coast of the Americas.

This decision is a “victory for those who live, work and recreate in Delta,” said Barbara Barrigan-Parrilla, Executive Director of Restore the Delta (RTD).

The ruling requires the Council to rewrite the Delta Plan while at the same time rejecting the water contractors’ arguments.

“This is huge – we and our partners won the Delta Plan lawsuit,” she emphasized, adding, “This is one of many efforts to Stop the Tunnels.”

Similarly, Stockton attorney Thomas Keeling, who represented some of the parties involved in the litigation, told the Stockton Record, “This is a victory for folks in the Delta.”

Adopted in May 2013, the controversial Delta Plan contains 14 regulatory policies and 73 recommendations on topics including improving water supply reliability, restoring and enhancing the Delta’s ecosystem, preserving and protecting the Delta’s unique characteristics, and reducing flood risk, according to the Council.

Soon after being adopted, multiple parties including the state and federal water contractors, the Central Delta Water Agency, the City of Stockton, the San Luis Delta Mendota Water Authority, the Westlands Water District,  the California Water Impact Network (C-WIN) and others filed 7 separate lawsuits challenging the sufficiency and legality of the Delta Plan, as well as the sufficiency of the Delta Plan’s Environmental Impact Report (EIR).

The coalition of fishing, wildlife and environmental groups suing the Council to halt the Delta Plan and the Delta Tunnels included C-WIN, Friends of the River, California Sportfishing Protection alliance, Center for Biological Diversity, AquaAlliance and Restore the Delta. (…)

The judge consolidated the seven cases and bifurcated the case  into two parts: the statutory challenges and the CEQA challenges. Wednesday’s ruling covers the statutory challenges.

“In general, the ruling finds that the Delta Plan does not meet the requirements of the Delta Reform Act with respect to establishing, ‘quantified or otherwise measurable targets,” but left intact the Council’s authority to require reduced reliance on the Delta, among other things,” summed up Maven’s Notebook.  (…)

The Delta Stewardship Council also claimed “victory” in the ruling. In a prepared statement, the Council said the Sacramento Superior Court “ruled in favor of the Delta Stewardship Council on the vast majority of issues regarding the adequacy of its master plan for the Delta.”

“I am pleased the Court upheld our regulatory authority and the role of the Council in shaping California water policy,” said Jessica R. Pearson, executive officer for the Council. “The court acknowledged that the Delta Plan is based on best available science, which is foundational for the actions we and others take in the Delta.”

“The court ruled that the Council did have the authority to develop a legally enforceable management plan for the Delta – one that requires reduced reliance on the Delta as a source of water, sets aside zones to help restore the Delta ecosystem and preserves and enhances the unique character of the largely agricultural collection of islands and waterways east of the San Francisco Bay,” according,” the Council claimed.

The Council did admit that  the court  “did cite two instances in which it concluded that the Council’s Delta Plan fell short of requirements included in the 2009 Delta Reform Act that created the Council and directed it to develop the plan. The Court said the Delta Plan did not contain sufficiently quantifiable performance measures and also did not adequately ‘promote options’ to improve the way water projects move water across the Delta.”

Barrigan-Parrilla wasn’t impressed with the Council’s claim of “victory” in the lawsuit.

“They’re shot twice in the head, but celebrate the fact that other bullets missed arms and legs,” she quipped.

Barrigan-Parrilla noted, “The Council celebrates a false victory in the lawsuit, when in reality they have to rewrite the Delta Plan and need additional environmental review.”

Judge Kenny also found that the CEQA challenges currently pending in the coordinated proceeding are “moot,” in light of Wednesday’s rulings on the plan. (…)

To view the Council’s Entire Response on the Ruling on the Delta Plan Statutory Challenges, please click here.

To view the Ruling on Delta Plan Statutory Challenges Document, please click here. 

I will update this article when I receive more information from participants in the legal challenges.   

About the Author

Dan Bacher is an environmental journalist in Sacramento who focuses on California's water issues, a healthy environment for the salmon fishery of the Northwest, and the attempts by big agriculture and big oil to hog all the water.