On February 26 and 27, 2026, the Delta Stewardship Council (Council) held a two-day public hearing to address ten appeals challenging the California Department of Water Resources’ (DWR) Certification of Consistency (C20257) with the Delta Plan for the proposed Delta Conveyance Project (DCP). DWR proposes to add two new water diversions on the Sacramento River in the north Delta near the community of Hood in Sacramento County, from which it would convey up to 6,000 cubic feet per second of Sacramento River water through a 45-mile underground tunnel to the south Delta for export to State Water Project contractors in the Bay Area, San Joaquin Valley, and Southern California. During the hearing, the Council and public weighed in with comments and questions directed at whether DWR’s consistency certification is supported by substantial evidence in the record.

Background

The Delta Reform Act of 2009 (Act) tasks the Council with implementing the Delta Plan, a comprehensive and legally enforceable resource management plan for the Sacramento-San Joaquin River Delta and Suisun Marsh. The Act establishes two Co-Equal Goals: providing a more reliable water supply and protecting, restoring, and enhancing the Delta ecosystem, and directs that “the Co-Equal Goals shall be achieved in a manner that protects and enhances the unique cultural, recreational, natural resource, and agricultural values of the Delta as an evolving place.” (Wat. Code, § 85084.)

The Act grants the Council regulatory and appellate authority over “covered actions,” which are plans, programs, or projects in the Delta carried out, approved, or funded by a state or local public agency that are subject to one or more of the 14 Delta Plan regulatory policies and that significantly impact the Co-Equal Goals or government-sponsored flood control programs. Agencies proposing to undertake a covered action must submit a written Certification of Consistency with the Delta Plan and applicable regulatory policies to the Council before implementing the action. This certification must include detailed findings on whether the action aligns with the 14 regulatory policies in the Delta Plan.

Although the Council has appellate authority over covered actions, it does not approve them. The regulatory framework calls for self-certification by the agency seeking to implement a covered action. After self-certification, any person may file an appeal of the certification within 30 days, alleging that it is inconsistent with Delta Plan regulatory policies and has a significant adverse impact on the Co-Equal Goals. Appellants must show that the certification is not supported by substantial evidence in the record.

On October 17, 2025, DWR submitted a Certification of Consistency for the DCP (Certification) to the Council. Ten entities filed timely appeals of the Certification: the Delta Protection Commission, Courtland Pear Fair, Sacramento County and Sacramento County Water Agency, Steamboat Resort, San Francisco Baykeeper et al., Sacramento Area Sewer District, City of Stockton, South Delta Water Agency, San Joaquin County et al., and DCC Engineering Co., Inc.

Hearing Summary

On the first day of the hearing, the Council heard presentations from both the appellants and DWR. Each appellant had 20 minutes to present its appeal, while DWR was allotted 200 minutes (reflecting the total time of appellant presentations) to present its Certification.

“A Solution for Only One Part of the State”

Each appellant asked the Council to remand the Certification to DWR, arguing that DWR failed to comply with Delta Plan regulatory policies, and that the DCP is, on the whole, inconsistent with the Co-Equal Goals. Appellants presented scientific and data-based evidence to support their claims of inconsistency, relying in large part on analyses and testimony by technical experts and community stakeholders from a parallel proceeding before the State Water Resources Control Board (SWRCB) Administrative Hearing Office (AHO) concerning DWR’s proposed change in points of diversion for the State Water Project to allow it to operate the DCP. In addition, appellants shared personal stories of the Delta’s agricultural, cultural, and recreational significance. DWR Director Karla Nemeth offered wide ranging comments regarding climate variability and adaptation and DWR’s perspective on the need for the DCP, acknowledging “very publicly” that the DCP is “a solution for only one part of the state that is right now relying on those deltas [levies] to be secure to move water.” DWR staff then addressed specific issues raised by the appeals.

Councilmembers and the Public Weigh In

On the second day of the hearing, the Council questioned a panel of appellant and DWR representatives on numerous issues raised in the appeals, including (but not limited to):

• Timing of the Certification. The Council asked questions about the timing of DWR’s Certification in relation to the concurrent DCP water rights hearing. In addition to the requirement to certify consistency with the Act, before DWR can construct the DCP, the SWRCB must approve DWR’s requested water right changes. One councilmember stated that it was “always really clear” that the “Stewardship Council recommended that all [SWRCB changes in point of diversion] work would be done ahead of” the Certification. The councilmember questioned, if the SWRCB does not approve DWR’s requested water right changes, whether the Council would “have spent all this time and money [on the appellate process for the Certification] for nothing?”
• Community and Tribal Engagement. The Council inquired into DWR’s engagement with the community and tribal members, specifically regarding the incorporation of tribal perspectives and Tribal Ecological Knowledge (TEK). Tribal representatives and community members reported concerns that DWR’s consultation efforts were inadequate, perceived as disingenuous, and lacked meaningful engagement.
• Best Available Science. The Delta Plan requires that certifications demonstrate the use of “best available science,” (BAS) as defined in Council regulations. Councilmembers focused on the use of BAS in connection with climate change, asking DWR to explain its selection of sea level rise and baseline data. They also questioned DWR’s modeling approach, including whether modeling in the record has adequately accounted for extreme events related to climate and sea level rise.
• Delta Flow Criteria. DWR is required to demonstrate consistency with the Delta Plan by using Delta water quality control plan flow objectives. Questions focused on whether DWR could meet that burden in light of DCP modeling deficiencies identified by appellants and the SWRCB’s AHO.
• Delta Bond Validation. Questions arose regarding how DWR would pay for the DCP’s $500 million Adaptive Management Plan in light of the Third District Court of Appeal’s ruling in DWR v. The Metropolitan Water District of Southern California, which rejected DWR’s attempt to validate its authority to issue revenue bonds for the planning, acquisition, and construction of a “Delta Program,” requiring DWR to find alternative means to fund the DCP.
• Muck Pile Disposal. A Councilmember asked DWR to elaborate on its plans for disposing of potentially toxic tunnel muck (which DWR terms “Reusable Tunnel Material”).
• Reduced Reliance on the Delta. Questions focused on the sufficiency of DWR’s analysis that water suppliers who would receive water via the DCP have adequately demonstrated reduced reliance on the Delta, including whether increasing Delta exports, as the DCP proposes, would meet that standard.
• Mitigation Measures. Questions addressed whether the record establishes that DWR fully considered whether the DCP would improve habitat conditions for golden mussels, an invasive species.

Following several hours of councilmember questions, the Council accepted public comments both in person and via Zoom. Tribal leaders and elected officials from the Delta, opposing the DCP, and officials from water agencies in the Bay Area and southern California, who support the DCP, provided comments. First, tribal representatives reiterated their concerns regarding the impacts of the DCP and their peoples, and their strong impression that DWR had not meaningfully consulted with the tribes. Congressman John Garamendi, Walnut Grove, then urged the Council to consider alternatives to a tunnel project, such as armored levees and water recycling. Rep. Garamendi emphasized his perspective that it is possible to create a water plan for all of California without a tunnel. He stated, “California can prepare for the changes that are occurring in the climate and in the river systems. [] It can be done and, [] without a tunnel, without a peripheral canal. It can be done by water planning.” Rep. Garamendi also discussed the legislation he authored with former U.S. Senator Diane Feinstein, which established the Delta as a National Heritage Area due to its unique ecology and communities, emphasizing that “[t]here is no other place on the West Coast of the Western Hemisphere like this Delta.”

Proponents of the project emphasized the importance of the DCP to address water supply reliability issues. Sarah Palmer, member of the Zone 7 Water Agency Board of Directors, stated “[c]limate change is already causing major swings in water supplies due to weather weirding and [] restoration of the water supply that would be lost should the Delta Conveyance Project not move forward cannot be recouped by any other project because Zone 7 depends on the movement of water through the State Water Project system.”

Next, Sacramento County Supervisor Pat Hume, Stockton Mayor Christina Fugazi, and Yolo County Supervisor Oscar Villegas each voiced objections based on local impacts. They were followed by additional commenters including representatives from other water agencies, non-governmental organizations, and Delta residents and community representatives.

What Happens Next

The Council must act on the appeals within 60 days of the hearing. The determination may deny the appeals if the Council finds that substantial evidence in the record supports DWR’s Certification or remand the Certification to DWR if it finds that DWR’s Certification is unsupported by substantial evidence in the record. If remanded, the DCP cannot proceed until DWR submits a revised Certification addressing the Council’s findings and any appeals are resolved. New appeals would be limited to the remanded issues or changes to the DCP.

Somach Simmons & Dunn filed three appeals on behalf of four Delta public agency clients.

For inquiries or additional information, please contact:

• Danielle D. Fatta, dfatta@somachlaw.com
• Ellen M. Moskal, emoskal@somachlaw.com
• Kelley M. Taber, ktaber@somachlaw.com

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