Delta Stewardship Council faces numerous lawsuits challenging its certification of an EIR for the Delta Plan

The California State Legislature created the Delta Stewardship Council in 2009 by enacting SBX7 1, the Delta Reform Act. The Council’s primary mission is to adopt a comprehensive management plan for the Sacramento-San Joaquin Delta (the “Delta Plan”) that achieves the “coequal goals” of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem.

In developing its recently adopted Delta Plan, the Council was required to prepare an Environmental Impact Report (EIR). The Council published a notice of preparation in December 2010 indicating that it would prepare a programmatic EIR to evaluate the potential environmental impacts of the proposed Delta Plan.

An EIR was required under CEQA because the Delta Plan could have significant environmental effects relating to the binding regulatory policies included within the Plan. The Council will not directly construct, own, or operate facilities in the Delta, or directly undertake any other specific activities to implement the Delta Plan, so adoption of the Plan would not result in direct physical changes to the environment. But adoption of the plan could indirectly cause such changes by influencing the decisions and actions of other agencies. The EIR focused on these potential indirect impacts.

Preparation of the EIR involved an extensive drafting and public review process. Numerous public workshops and hearings were held, culminating in nearly 100 public meetings, and many draft documents were circulated to the public. Five draft versions of the Delta plan were released between 2010 and 2011, with a final draft released in 2012. The Draft PEIR for the Delta Plan was circulated in 2011, and recirculated in 2012. A final EIR responding to public comments was certified by the Council at its May 16-17, 2013 meeting.

Despite the extensive public review process, multiple interest groups have challenged the Council’s certification of the EIR in court. Following certification of the EIR, the Council published a notice of determination, which starts a 30-day statute of limitations in which to bring a suit under CEQA. By the close of this limitations period, seven lawsuits had been filed in various courts challenging the adequacy of the EIR.

Three lawsuits were filed in the Sacramento County Superior Court. The San Luis & Delta-Mendota Water Authority and Westlands Water District filed a petition alleging numerous causes of action under CEQA and also alleging that the Council violated the Delta Reform Act. A second lawsuit was filed by the State Water Contractors, who were joined by various flood control and water districts. This suit also alleges similar violations of CEQA, such as inadequate mitigation measures and inadequate responses to comments and claims that the Delta Plan is inconsistent with the Delta Reform Act. A third suit was filed by the North Coast Rivers Alliance, Pacific Coast Federation of Fishermen’s Associations, San Francisco Crab Boat Owners Association and the Winnemem Wintu. Again, this suit included numerous allegations of CEQA violations, as well as violations of the Delta Reform Act.

The City of Stockton filed suit against the Council in San Joaquin County Superior Court. This suit alleges the EIR violated CEQA for numerous reasons and that the Delta Plan and regulations adopted by the Council conflict with state law and vested rights created by statutory and common law.

The three remaining suits were filed in the San Francisco County Superior Court. These included a suit by a new interest group, Save the California Delta Alliance, and a suit brought by the California Water Impact Network, Friends of the River, California Sportsfishing Protection Alliance, and Center for Biological Diversity, among others. The final petition was brought by in-Delta interests, including the Central Delta and South Delta Water Agencies, and local agencies of the north Delta. These suits too allege numerous violations of CEQA.

The plethora of suits against the Delta Council implicates upcoming procedural hurdles in the litigation over the Delta Plan and Delta Plan PEIR. First, the cases will likely need to be at least partially consolidated, so they may be tried before a single judge based on a single administrative record. And second, the preparation of the administrative record itself may be a hurdle because some petitioners have elected to prepare the record themselves, while others have requested that the agency prepare the record. In short, the filing of these seven lawsuits indicates that the Council will have to travel down a long and litigious road in order to implement the Delta Plan as directed by the State Legislature.