On January 23, 2025, the Delta Stewardship Council (Council) adopted a 33-page decision (“Decision” or “D20242”) regarding the California Department of Water Resources’ (DWR) Certification of Consistency (Certification) with the Delta Plan pertaining to a small subset of geotechnical activities that form part of the Delta Conveyance Project (DCP). The DCP is a proposal by DWR to modify the State Water Project by constructing and operating large-scale water conveyance infrastructure in the Delta. The DCP includes the proposed construction and operation of two intake structures on the Sacramento River in the north Delta, a 45-mile-long underground conveyance tunnel through the Delta, and a new pumping plant that will lift the water into the existing Bethany Reservoir south of the Delta.

In its Decision, the Council presented its opinion and conclusion that, notwithstanding the Sacramento County Superior Court’s (Court) statutory interpretation to the contrary, the Legislature did not intend to incorporate the California Environmental Quality Act’s (CEQA) “whole of an action” anti-piecemealing concept when the Legislature defined a “covered action” under the Sacramento-San Joaquin Delta Reform Act of 2009 (Wat. Code, § 85000 et seq. [Delta Reform Act]) as a “project as defined pursuant to Section 21065 of the Public Resources Code,” a statute under CEQA. (See Wat. Code, § 85057.5.) Under the Council’s interpretation, a state or local agency may submit serial certifications of consistency for portions of its Delta Reform Act covered action if such agency reasonably and in good faith determines each certification pertains to an “activity” that would cause a “direct physical change” or “reasonably foreseeable indirect physical change” in the environment and meets the four other criteria set forth in Water Code section 85057.5, subdivision (a). (D20242, pp. 15-18.) The Council added, however, that it presumes an agency “acted in good faith in performing its official duty with respect to its determination.” (Id., p. 3, fn. 3.)

Although it appears the Council views the Decision as precedent for future certifications of consistency, the Court’s preliminary injunction ruling to the contrary is currently pending before the Third District Court of Appeal. The question of whether an agency may piecemeal certifications of consistency for a single project analyzed under CEQA is at issue in that appeal. The Council’s Decision further creates ambiguity and uncertainty as to what activities constitute the DCP, if the DCP is not the project defined under CEQA. The Council expressly stated DWR “must file a certification of consistency for the Delta Conveyance Project,” but the Council did not define the contours of the activities that constitute the DCP anywhere in the Decision. (D20242, p. 32.) It appears the Council is deferring to DWR’s “good faith” determination in that regard, which the Council purportedly presumes. For now, the public has no certainty as to how the DCP will be described and defined for the certification of consistency under the Delta Reform Act nor how many activities described in the DCP description under CEQA may be chopped up into separate certifications of consistency in the future.

Background

The Legislature enacted the Delta Reform Act to address the crisis in the Sacramento-San Joaquin Delta (Delta) watershed and California’s water infrastructure. (Wat. Code, § 85001, subd. (a).) As part of the Delta Reform Act, the Legislature created the Council “as an independent agency of the state [citation] and charged it with adopting and implementing a legally enforceable ‘Delta Plan,’ a comprehensive, long-term management plan for the Delta that furthers two ‘coequal goals’—‘providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem’ [citations].” (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1028 (DSC Cases).) The Delta Plan consists of 73 recommendations and 14 policies. (Id. at p. 1042.)

The policies of the Delta Plan are regulatory in nature and are “enforced by the Council’s appellate authority and oversight over covered actions.” (DSC Cases, supra, 48 Cal.App.5th at p. 1042.) Subject to certain exceptions, a “covered action” is a land use action, defined as “a plan, program, or project as defined pursuant to Section 21065 of the Public Resources Code” that meets four conditions; specifically, the action:

(1) Will occur, in whole or in part, within the boundaries of the Delta or Suisun Marsh[;] (2) Will be carried out, approved, or funded by the state or a local public agency[;] (3) Is covered by one or more provisions of the Delta Plan[; and] (4) Will have a significant impact on achievement of one or both of the coequal goals or the implementation of government-sponsored flood control programs to reduce risks to people, property, and state interests in the Delta. (Wat. Code, § 85057.5, subd. (a).)

Water Code section 85225 provides that a state or local public agency must prepare and submit a written certification of consistency as to whether a covered action is consistent with the Delta Plan “prior to initiating the implementation of that covered action ….”

On June 20, 2024, the Court issued a preliminary injunction precluding DWR from undertaking further geotechnical investigations implementing the DCP until DWR files a certification of consistency with the Council as required under the Delta Reform Act. (See https://somachlaw.com/policy-alert/court-issues-preliminary-injunction-halting-geotechnical-investigations-for-the-delta-conveyance-project/.) The Court explained that DWR defined the DCP (i.e., the project) in the Final Environmental Impact Report (EIR) to include the geotechnical work and further described the geotechnical work “as a ‘key component’ of the project.” (https://somachlaw.com/wp-content/uploads/2024/06/CU_24WM000014_2eb8cee1-272a-4a6f-9a12-10c7ab54b09e8.pdf at p. 4.) The Court accordingly held: “Because the geotechnical work is part of the ‘project’ within the meaning of CEQA, it is necessarily part of a ‘covered action’ within the meaning of Water Code section 85225.” (Ibid., emphasis added.) DWR appealed the preliminary injunction ruling and its appeal remains pending before the Third District Court of Appeal.

On October 8, 2024, DWR filed a certification of consistency for the “2024-2026 Geotechnical Activities” (Activities) – a “small subset of geotechnical activities” described in the Final EIR for the DCP. (D20242, pp. 2, 4.) Four groups of appellants filed appeals. (Id., pp. 7-8.)

The Council held a public hearing on the appeals on December 19, 2024. The Council’s staff thereafter released a draft determination on the appeals for the Council’s consideration. The Council adopted the draft determination by Resolution 2025-01 on January 23, 2025, after hearing and considering public comments. The Council dismissed the appeals for lack of jurisdiction.

Council Decision No. D20242

The Council agreed with DWR and some of the appellants that the Activities do not constitute a covered action within the meaning of the Delta Reform Act. (D20242, pp. 21‑22, 32.) The Council found the Activities are not a “covered action” because no Delta Plan regulatory policy applies to the proposed geotechnical activities. (Id., p. 32.) The Council thus dismissed the appeals for lack of jurisdiction. (Ibid.) Although the Council expressly stated that, due to its lack of jurisdiction, its “review authority at that point ends, and no further findings are made” (id., p. 2), the Council nevertheless went on to opine on “whether CEQA case law and Guidelines govern certifications of consistency and prohibit [DWR] from submitting a separate certification of consistency for the [Activities]” from a certification of consistency for the DCP (id., p. 3).

The Council found DWR “did not necessarily violate the Delta Reform Act by submitting a certification of consistency for the [Activities] separate from other activities described in the Final EIR for the Delta Conveyance Project.” (D20242, p. 3.) Under the Council’s interpretation, a state or local agency may piecemeal its Delta Reform Act certifications of consistency if such agency, reasonably and in good faith (Cal. Code Regs., tit. 23, § 5001, subd. (k)(3)) – which is presumed – determines each certification pertains to an “activity” that would cause a “ ‘direct physical change’ or ‘reasonably foreseeable indirect physical change’ in the environment” and meets the four other criteria set forth in Water Code section 85057.5, subdivision (a). (D20242, pp. 15‑18.)

The Council reasoned the CEQA anti-piecemealing concept is inapplicable to the Delta Reform Act because, despite the Legislature’s express incorporation of the project definition under CEQA, the Council is an independent agency with the power to regulate covered actions and is not subordinate to the regulatory authority of another agency. (D20242, pp. 13‑14.) The Council further reasoned that CEQA does not govern the certification process except where expressly incorporated by the Council’s regulations. (Id., pp. 3, 15‑16.) In that regard, the Council pointed to its “regulatory ‘significant impact’ definition” and “regulatory process that governs an agency determination of whether an activity is a covered action” as a means of addressing “concerns related to piecemealing.” (Id., p. 17.) The Council’s “significant impact” definition provides “the project’s incremental effect is considered together with the impacts of other closely related past, present, or reasonably foreseeable future projects.” (Cal. Code Regs, tit. 23, § 5001, subd. (jj).) It is unclear who determines the scope of past, present, or reasonably foreseeable future “projects,” however, if the definition of a “project” is not the whole of the action under CEQA. Notably, the Council directed agencies to “consider the ‘whole’ of a project when making a covered action determination,” but indicated an agency may nonetheless sever “discrete activities” of the whole of the project occurring outside the legal boundaries of the Delta for purposes of filing a certification of consistency. (D20242, pp. 16-17.) The Council’s statement may impact the scope of the DCP to be included in a future certification of consistency because portions of the DCP will be constructed outside of the legal boundaries of the Delta.

The ambiguity and uncertainty as to the scope of the DCP as a “project” under the Delta Reform Act arises from the Council’s directive that DWR file “a certification of consistency for the Delta Conveyance Project” in the future (D20242, pp. 4, 33), without providing or defining the contours or scope of that “project” in the Decision. In stating “[t]he Delta Conveyance Project is clearly a closely related project” to the Activities, the Council merely cited to a page in the Final EIR that discusses groundwater testing and monitoring, test trenches, monument installation, and geotechnical pilot studies for settlement. (Id., p. 20.) The citation to the Final EIR thus provides no clarity as to the scope of the DCP for purposes of any future certification(s) of consistency. In the Final EIR Appendix 3E, “Delta Reform Act Considerations,” DWR itself in fact described the “project” subject to the certification of consistency requirement under the Delta Reform Act as the DCP in its entirety, including the Activities that formed the basis for the Certification before the Council. Questions remain such as, for example: Does the DCP include only the structures to be installed within the Delta, and no other activities described in the Final EIR? Does the DCP include the connected activities and infrastructure that transcend the legal boundaries of the Delta because the definition of a “covered action” under Water Code section 85057.5, subdivision (a), provides that the project may “occur, in whole or in part, within the boundaries of the Delta or Suisun Marsh” (emphasis added)? Who defines the scope of the “closely related past, present, or reasonably foreseeable future projects” within the meaning of section 5001, subdivision (jj), of title 23 of the California Code of Regulations if such projects do not constitute the project under CEQA?

Contrary to some reports, the Council’s Decision does not give DWR the authority to move forward with the Activities. DWR is still precluded from undertaking the Activities under the Court’s preliminary injunction. DWR has indicated that it intends to file a motion to stay enforcement of the Court’s preliminary injunction ruling based on the Council’s Decision. The motion will be opposed and will likely be heard in late March 2025. Additionally, the Third District Court of Appeal’s resolution of the preliminary injunction appeal may also impact the legal import of the Council’s Decision.

Somach Simmons & Dunn appealed the Certification on behalf of several public agency clients and secured the preliminary injunction in the Court.

For inquiries or additional information, please contact:

• Louinda V. Lacey, llacey@somachlaw.com
• Danielle D. Fatta, dfatta@somachlaw.com

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