This afternoon the Department of Water Resources (DWR) withdrew its Certification of Consistency for the California WaterFix from consideration by the Delta Stewardship Council (Council).  Bowing to pressure from Council members, Council staff, the Delta Protection Commission, and nine appellant groups participating in the Council proceedings—including the City of Stockton and Sacramento Regional County Sanitation District, both represented by Somach Simmons & Dunn—DWR issued its statement of withdrawal just two weeks before the Council was scheduled to make a final decision on DWR’s submission.  Under the Delta Reform Act, DWR cannot proceed with the WaterFix project until it satisfies the Council that the project is consistent with the Delta Plan.

As with the other regulatory approvals for WaterFix, DWR’s July 2018 Certification of Consistency was met with resistance.  Appellants offered proof that DWR had failed to support its conclusions of consistency with substantial evidence, and Council staff agreed.  In its November 9, 2018 Draft Determination, Council staff recommended that the certification for WaterFix be remanded to DWR for additional study and review as to the project’s consistency with several Delta Plan goals.

At a Council workshop held on November 15 and 16, 2018, DWR, Appellants, as well as the Delta Protection Commission and members of the public, were given the opportunity to voice their support and concerns regarding Council staff’s Draft Determination before a quorum of the Council.  Although no action was taken by the Council at the workshop, Council Chair Randy Fiorini, nevertheless, made his position clear.  At the conclusion of the parties’ presentations, he voiced his concern with WaterFix’s inconsistency with several key Delta Plan goals.  He further stated that DWR filed its Certification of Consistency prematurely, and he strongly encouraged DWR to withdraw the certification from consideration and immediately resume consultation with Council staff.  Judge Frank C. Damrell Jr., a Councilmember, echoed Chair Fiorini’s concerns and similarly called for DWR to withdraw its certification.  Judge Damrell’s comments focused heavily on DWR’s failure to meaningfully engage with affected Delta residents’ local governments to mitigate the project’s impacts.

DWR’s withdrawal presents a substantial setback for WaterFix proponents.  In order to address Council members and staff concerns, DWR will have to submit a revised Certification of Consistency to the Council after undertaking additional efforts to demonstrate that south of Delta water users who would receive exports through the WaterFix have done enough to reduce reliance on the Delta, and additional technical studies, as well as possible supplemental environmental review, among other necessary fixes.

For more detailed information regarding Council staff’s Draft Determination, please see the Somach Simmons & Dunn website alert issued on November 14, 2018:  Delta Stewardship Council Staff Determination Presents Hurdle for California WaterFix Project.

For more information, please contact Michelle Chester at mchester@somachlaw.com.

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