More details on the denial of the Delta Plan by Judge Kenny
For Immediate Release: 6/24/16
Contact:
Robert Wright, Friends of the River, 916-442-3155 x207
Osha Meserve, Local Agencies of the North Delta, 916-425-9914
Bill Jennings, CSPA, 209-464-5067
Tim Stroshane, Restore the Delta, 510-847-7556
COURT: Delta Plan “Invalid”
Council must enact quantified and measurable protections
Sacramento, CA - Superior Court Judge Michael Kenny yesterday clarified his May 18, 2016 decision that the Delta Stewardship Council’s 2013 Delta Plan is now vacated and invalid. That clarification became final at a hearing today.
In 2013, the Delta Stewardship Council adopted a Delta Plan which established policies and made recommendations for the management and sustainability of the estuary. A total of seven lawsuits were filed soon after that, challenging the sufficiency and legality of the Delta Plan and the plan’s Environmental Impact Report.
The court found that the Delta Plan does not meet the requirements of the Delta Reform Act with respect to establishing “quantified or otherwise measurable targets.” This included its failure to articulate a “flows policy” protective of Delta resources and uses, as well as quantify measures to reduce reliance on the Delta for future water needs of importers, among other things.
In his clarification notice released late Thursday Judge Kenny said, “To be clear, the Delta Plan is invalid and must be set aside until proper revisions are completed.”
Kenny found the Delta Plan fails to include “quantified or otherwise measurable targets” to:
reduce reliance on the Delta by water exporters
reduce risk of take and harm to listed species from nonnative invasive species
restore more natural flows into and through the Delta
increase water supply reliability
The Plan also failed promote options for new and improved infrastructure relating to water conveyance in the Delta, storage systems, and for the operation of both to achieve the coequal goals of increased water supply reliability and protection of Delta ecosystems.
The Delta Stewardship Council must now redo the Delta Plan.
Groups who participated in the lawsuits challenging the weak Delta Plan included: AquAlliance, California Sportfishing Protection Alliance, California Water Impact Network, Center for Biological Diversity, Friends of the River, North Coast Rivers Alliance, Pacific Coast Federation of Fisherman’s Associations, Restore the Delta, Save the California Delta Alliance, San Francisco Crab Boat Owners Association and the Winnemem Wintu Tribe.
Those groups coordinated with: Central Delta Water Agency, Lafayette Ranch, Inc., Local Agencies of the North Delta, fisherwoman Cindy Charles from San Francisco and South Delta Water Agency.
Today, these groups hailed the clarification order:
Barbara Vlamis, director, AquAlliance:
Our group asked for a thorough environmental review of the Delta Plan, but now the plan must be completely re-written. On the issue of water supply, the Plan doesn’t even allude to where the water is coming from and that’s just ludicrous.
Tim Stroshane, policy analyst with Restore the Delta:
Judge Kenny has told the state that the Delta Reform Act means what it says. The Delta Stewardship Council must go back to the drawing board and actually require numeric measures of progress from water importers to reduce reliance on the Delta for their future water needs.
Bill Jennings, executive director of the California Sportfishing Protection Alliance:
The court invalidated the Delta Plan because it blatantly failed to comply with the law and, consequently, was not protective of the Delta. The Plan failed to mandate specific requirements that would reduce reliance on the Delta, provide for more natural flows, reduce harm from invasive species or increase water supply reliability though increased regional self-sufficiency. This will delay efforts to construct the Delta Tunnels. State and federal contractors will now have to reassess whether they wish to expend tens of billions of dollars for a project that will supply less water from the Delta.
Osha Meserve, counsel for Local Agencies of the North Delta (LAND):
The Council made clear all along that it was doing everything it could to stay out of the way of the Delta Tunnels. In so doing, the Council ignored the mandates of the Delta Reform Act to actually protect the Delta in a concrete and measurable way. This ruling sends a clear message that the Delta needs, and the law requires, more than another glossy Plan with pretty pictures that accomplishes nothing. I am not sure what the point of the Council continuing to exist is, given its refusal to carry out the Delta Reform Act’s basic requirements.
Thomas H. Keeling, counsel, Central Delta Water Agency, South Delta Water Agency, etc.
The Delta Plan was intended to be the overarching structure – the “dock” that would receive the Bay Delta Conservation Plan. But the BDCP didn’t survive and was replaced with the “WaterFix.” Now the Delta Plan itself is dead.
Robert Wright, senior counsel, Friends of the River:
The Delta is under more threat than ever before, from exports to powerful special agricultural interests in the south and from climate change. It is time for the Council to proceed to deal with the Delta crisis by adopting powerful Delta Plan provisions restoring Delta flows and reducing exports in an effort to save the Delta.
BACKGROUND
Though created by the Legislature with good intentions, the Delta Stewardship Council and the Plan have done very little to improve conditions in the Delta. Multiple fish species are going extinct, water contractors continue to taking more water than the ecosystem can sustain, and in-Delta beneficial uses from municipal drinking water to subsistence fishing to farm irrigation are threatened.
Among the failures cited by Judge Kenny, the Council failed to provide a flow policy, punting that duty to the State Water Resources Control Board, which is now over 20 years late updating its own 1995 Bay Delta plan. The Council’s plan spoke of making “progress” on restoring flows, but nothing measurable has occurred on its watch.
In 2013, the Council assumed that Governor Brown’s Bay Delta Conservation Plan would be automatically incorporated into the Delta Plan, but when the state dropped that plan in April 2015, the Delta Plan had no policies with which to ensure that the proposed Delta Tunnels project would comply with the Plan and with state law.
In its public remarks, the Council also overstates the work it has done to revise the Plan in the interim period since the litigation was filed in 2013. The Delta Plan is essentially the same shell as it was before, and the Council remains ineffective in addressing the needs of the Delta.
