Release of Delta Plan Triggers Flood of Lawsuits

Tuesday, June 18, 2013

At least four lawsuits have been filed in the past month—three within the last few days—firing off a wide variety of objections to the announced $53 billion plan for transforming the Sacramento-San Joaquin Delta.

All four lawsuits attack the plan’s balancing act between its two avowed goals of protecting the Delta and providing more water for Californians. But they don’t agree on whose ox is being gored. At the core of their discomfort is that all parties are already suffering a loss of resources in a zero-sum game that is still shrinking.

It’s questionable whether any Delta solution would solve problems already exacerbated by climate change, depleted groundwater sources, terrible agriculture practices, years of infrastructure neglect, tepid conservation efforts, regulatory failure and widespread pollution.

So the much-awaited final plan, commissioned by the Legislature in 2009 and adopted by the Delta Stewardship Council on May 16, set off a storm of legal protests that echoed complaints heard for years as the contours of its proposal became evident.

Contained within its dozen or so policies is a framework for Governor Jerry Brown’s proposed $14-billion twin-tunnel diversion being developed through a separate federal and state initiative that would facilitate sending more water from the Sacramento and San Joaquin rivers to other parts of the state. Threatened fisheries, endangered species, vulnerable levees, water quality and myriad other issues are addressed in the plan.    

The first lawsuit was filed in Sacramento County Superior Court last month by the Westlands Water District and the San Luis & Delta-Mendota Water Authority. They complained (pdf) that the Delta Plan “ironically . . . limits the use of exported water instead of promoting or identifying actions that will meet water needs.”

Chris Knopp, executive officer of the Delta Stewardship Council, called the suit “disappointing,” but not unsurprising and his summary of its objections foreshadowed the legal actions to follow.

“In essence, this suit challenges the adequacy of the Environmental Impact Report under the California Environmental Quality Act, and the Council’s authority under, and compliance with, the Delta Reform Act. Neither avenues of challenge, in our opinion, have merit.”

While the water companies insist that not enough water will be flowing their way, environmental groups maintain the opposite.

One lawsuit (pdf) filed last Friday by the North Coast Rivers Alliance, Pacific Coast Federation of Fishermen’s Associations, San Francisco Crab Boat Owners Association and the Winnemem Wintu Tribe claims the Delta Plan violates the landmark California Environmental Quality Act (CEQA). “Its excessive generality precludes meaningful public review, and it fails to adequately consider feasible alternatives and mitigation measures that would prevent further ecologic collapse,” the suit alleged.

The suit charged that the Delta Plan failed to achieve the co-equal goals demanded by the Delta Reform Act of providing a more reliable water system while enhancing the Delta ecosystem. Instead, the water export plan “will destroy rather than save the Delta’s imperiled fish and wildlife” which is also a violation of the Public Trust Doctrine.     

Another lawsuit accused the council of conjuring up a plan that doesn’t “develop new flow criteria for the Delta ecosystem” as required by law. It points to specific studies and recommendations by the California Department of Fish and Wildlife, in consultation with the U.S. Fish and Wildlife Service, that the council and environmental impact report (EIR) “failed to disclose, consider, analyze or incorporate.”  The suit was filed by Aqua Alliance, California Sportfishing Protection Alliance, California Water Impact Network,  Center for Biological Diversity, Friends of the River and Restore the Delta.

A fourth lawsuit was filed by the State Water Contractors. Its press release said a key concern was that the Delta Plan could derail plans to build the two tunnels, which would imperil their supplies. The suit also complains that the EIR “assumes that implementation of the Delta Plan will result in substantial reductions in the delivery and use of water” but “fails to identify feasible replacement water sources, and it fails to analyze the many significant impacts of the plan that will occur outside of the Delta region.”   

More lawsuits are expected.


–Ken Broder


To Learn More:

Lawsuits Hit New Delta Plan from All Sides (by Matt Weiser, Sacramento Bee)

Lawsuits Filed against Calif.'s Delta Plan (by Gosia Wozniacka, Associated Press)

Avalanche of Lawsuits against Delta Plan Begins (by Dan Bacher, Daily Kos)

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