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June 20, 2024  |  Written by Louinda V. Lacey

Court Issues Preliminary Injunction Halting Geotechnical Investigations for the Delta Conveyance Project

On June 20, 2024, the Sacramento County Superior Court stopped the California Department of Water Resources (DWR) from undertaking further geotechnical investigations implementing the Delta Conveyance Project (DCP) until DWR files a certification of consistency with the Delta Stewardship Council as required under the Sacramento-San Joaquin Delta Reform Act of 2009 (Delta Reform Act). The DCP will, among other things, include two new intake facilities on the Sacramento River in the north Delta near the community of Hood, and a concrete-lined tunnel and associated vertical tunnel shafts to convey water from the intakes 45 miles to the Bethany Reservoir Pumping Plant and Surge Basin located south of the State Water Project’s Clifton Court Forebay. The geotechnical investigations would have included thousands of borings, trenching, installation of monitoring devices, test pits, and other tests throughout the Delta and along the path of the proposed DCP facilities to gather information for further project design and construction. The DCP final environmental impact report identified over 70 significant impacts relating to the geotechnical activities and the need for over 90 related mitigation measures.

The preliminary injunction to preclude DWR from undertaking the geotechnical investigations was requested by public agencies, tribal organizations, and non-governmental environmental and fisheries groups (Petitioners). Petitioners, who are challenging DWR’s approval of the DCP under the California Environmental Quality Act and various other legal authorities, explained the Delta Reform Act requires DWR to file a certification of consistency with the Delta Stewardship Council before DWR implements any part of the project. The purpose of filing a certification of consistency under the Delta Reform Act is to ensure that a project is consistent with the Delta Reform Act’s co-equal goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem and the fish, wildlife, and recreation it supports. Although DWR did not dispute that it must file a certification of consistency for the DCP with the Delta Stewardship Council, DWR argued the geotechnical activities were not “implementing” the DCP and it thus did not need to file the certification of consistency before proceeding with the geotechnical activities. The final environmental impact report for the DCP, however, identified the geotechnical activities as a key component and action of the project.

The trial court agreed with Petitioners that the geotechnical activities are an inextricable part of the DCP and DWR accordingly must file a certification of consistency with the Delta Stewardship Council prior to undertaking the geotechnical activities. The trial court further found that Petitioners and the public would suffer procedural harm by being denied the opportunity to appeal DWR’s certification of consistency prior to the completion of the geotechnical investigations. That is because once DWR files the certification of consistency, any person has the right to appeal whether the DCP is consistent with the Delta Reform Act’s coequal goals and, during the pendency of any such appeal, DWR would automatically be precluded from implementing the geotechnical activities associated with the DCP.

Somach Simmons & Dunn filed motions for preliminary injunction on behalf of several public agency clients and argued the motion before the trial court. The trial court’s order is available here: SCSC Order Granting Petitioners’ Motions for Preliminary Injunction.

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