Avalanche Of Lawsuits Challenges Delta Plan

Avalanche Of Lawsuits Challenges Delta Plan

by Dan Bacher

Bill Jennings, Executive Director of the California Sportfishing Protection Alliance, recently forecasted an "avalanche" of lawsuits against the Delta Plan approved by the Delta Stewardship Council on May 16. That avalanche of litigation is well underway.

Opponents of the Delta Plan from a wide variety of political perspectives, ranging from fishing groups, environmentalists and the Winnemem Wintu Tribe to the State Water Contractors Association, have to date filed a total of 7 lawsuits contesting the plan. Delta advocates say the plan doesn’t do enough to reduce reliance on Delta water and to protect fish, while agribusiness interests say it goes “beyond its scope “ in reducing reliance on Delta water.

A statewide coalition of fishing, environmental and farming groups filed a lawsuit in San Francisco Superior Court on June 14 to stop the Delta Plan, a document that that they say “lays the groundwork for the Delta water export tunnels.”

The groups filing the litigation include the California Water Impact Network (C-WIN), California Sportfishing Protection Alliance, AquAlliance, Restore the Delta, Friends of the River and Center for Biological Diversity.

The groups say that the Delta Stewardship Council, in adopting the final Delta Plan and its regulations and certifying the environmental documents, failed to comply with the Delta Reform Act, the California Environmental Water Quality Act and the Public Trust.

"The Delta Reform Act gave the Delta Stewardship Council a historic opportunity to remedy 40 years of water policy failures,” said Santa Barbara resident Carolee Krieger, executive director of the California Water Impact Network (C-WIN), a statewide water advocacy organization. "The Council instead failed to use the best available science – biological or economic - and adopted a status quo program that fails to fix the Delta or the water supply problem. The Council failed to honor its own mandate: the adoption of an effective strategy for the distribution of water and the preservation of the Delta."

Mike Jackson, attorney for C-WIN, Restore the Delta, California Sportfishing Protection Alliance, and AquAlliance, said, “The Delta Plan violates CEQA in ten different ways. It fails to achieve the co-equal goals of Delta ecosystem restoration and water supply reliability established by the Act.”

Jackson said the plan ignored three critical documents they were obligated to use: a State Water Resources Control Board water flow recommendation; a Department of Fish and Wildlife report on biological objectives for Delta fish and wildlife species; and the Delta Protection Commission’s economic sustainability report. “In all three cases, the documents were inconvenient to the approval of the tunnels,” he noted.

Bob Wright, senior counsel for Friends of the River, said, “Seeking relief from the courts is now necessary to protect our rivers and fish from this arbitrary, destructive action. The council’s plan is part of the worst threat to Northern California rivers in history, and continues state agencies’ efforts to take the water regardless of the adverse consequences.”

On the same day, the North Coast Rivers Alliance, Pacific Coast Federation of Fishermen's Associations, San Francisco Crab Boat Owners Associations and Winnemem Wintu (McCloud River) Tribe, represented by Stephan C. Volker, filed litigation in the Sacramento County Superior Court. The suit also claims that the Delta Plan violates the California Environmental Quality Act (CEQA), the Sacramento-San Joaquin Delta Reform Act of 2009 and the Public Trust Doctrine.

Zeke Grader, Executive Director of the Pacific Coast Federation of Fisherman’s Associations, explained the reason for the lawsuit.

“It’s important to fire a shot across the bow,” said Grader. “The notion of taking huge amounts of water from the Bay-Delta Estuary with little regard for fish has got to be stopped. We must stop any plan that supports the status quo or more diversions from the Delta. It is time instead to come up with a sound water program for all Californians.”

According to the complaint, "This is a public interest citizen suit to enforce California's environmental laws and protect the Delta from imminent ecological collapse. Petitioners bring this action to challenge the Delta Stewardship Council's approval of its Final Delta Plan and certification of its Program Environmental Impact Report (PEIR) on May 16, 2013."

First, the document says the plan and PEIR violate CEQ by failing to examine the impacts of increased water exports and to consider feasible alternatives to them.

"CEQA requires the Council to fully examine the impacts of increasing Delta exports, and to carefully consider alternatives that would avoid and reduce these impacts. Contrary to CEQA, the Council's PEIR does neither. Although it purports to analyze the environmental impacts of the Delta Plan as required by CEQA, its excessive generality precludes meaningful public review, and fails to adequately consider feasible alternatives and mitigation measures that would prevent further ecologic collapse.”

Second, the complaint says the plan violates the Delta Reform Act by not properly addressing the co-equal goals of ecosystem restoration and water supply.

“The Delta Reform Act requires the Council to complete a Delta Plan to achieve the ‘coequal goals’ of ‘providing a more reliable water supply for Californian and protecting, restoring and enhancing the Delta ecosystem. The Delta Plan does not achieve these goals. Instead it accommodates unsustainable increases in Delta exports that will thwart protection and restoration of the Delta ecosystem.”

Third, the complaint addresses the Plan’s violation of the Public Trust Doctrine that protects the estuary's fish and wildlife.

On June 14, the State Water Contractors Association filed a separate lawsuit challenging the Delta Plan and the PEIR. The association says the Delta Plan "exceeds the legislature's express grant of jurisdiction," and "violates the California Environmental Quality Act."

The three suits filed on June 14 were preceded by the lawsuit filed by the Westlands Water District and San Luis and Delta-Mendota Water Authority on May 24 calling upon the Council to revise the Delta Plan "to be consistent with the 2009 Delta Reform Act.”

“The Delta Plan may be the most incomplete environmental document I’ve ever seen and, in that regard, I do agree with Westlands,” said Michael Jackson.

The City of Stockton filed a lawsuit against the Delta Plan in San Joaquin County Superior Court of June 13. On June 17, the Save the Delta Alliance filed a suit contesting the plan in San Francisco Superior Court. On the same day, the Central Delta Water Agency, South Delta Water Agency, Local Agencies of the North Delta and Lafayette Ranch Inc. also filed suit in the same court.

Chris Knopp, Executive Officer of the Delta Stewardship Council (DSC), responded to the avalanche of lawsuits by stating, “As we’ve said before, we’re disappointed that so many have turned to the courts to reargue issues that were resolved in the Legislature and before the Council.

“Some are suing us for using powers they believe we were not given by legislature; others for not using powers they believe we were given," Knopp said. "Environmental groups want us to be more restrictive; water agencies believe we’re too restrictive. The Plan, however, actually walks the very careful line specified in the Delta Reform Act."

Caleen Sisk, Chief and Spiritual Leader of the Winnemem Wintu Tribe, commented on the avalanche of lawsuits. “The water wars are well under way in California,” said Sisk. “It’s really about the transport of Northern California water by ignoring the ‘First in Time - First in Use’ Water Rights of the Northern California Tribes!”

"It's one thing to talk about transporting water all over the state. It's another thing to talk about and plan for the needed clean-up that will bring the salmon back, along with allocating funds to replace outdated sewage systems and water pipes in disadvantaged communities. Our position is that the real issues need to be addressed with real resolve," Sisk concluded.

Based on the litigation filed so far, it appears that nobody - neither water contractors who receive water exported from the Delta or fishermen, environmentalists, Delta farmers and Tribes fighting to restore the Delta - is happy with the deeply flawed Delta Plan.

The lawsuit documents are available at: http://blogs.esanjoaquin.com/san-joaquin-river-delta/2013/06/17/lawsuit-palooza/