Council staff says CA WaterFix inconsistent with Delta Plan; Council chair urges DWR to withdraw ‘certification’

posted in: Spotlight | 0

Photo: Randy Fiorini, Delta Stewardship Council Chair (center), said he “would strongly encourage the Department to consider withdrawing the certification of consistency.” Photo by Dan Bacher.

On November 8, the Delta Stewardship Council staff released a draft report finding that the California WaterFix is not consistent with the Delta Plan after considering the appeals filed by an array of organizations, Tribes and governments to the “certification of consistency” filed by the California Department of Water Resources.

The release of the staff report was then followed by a Council workshop in Sacramento on November 15 during which Council Chair Randy Fiorini and Council Member Frank Damrell suggested that DWR withdraw their controversial document.

This is a major victory against the Delta Tunnels project that Governor Jerry Brown is trying to put in place as much as possible before he leaves office in January and Governor-Elect Gavin Newsom takes the helm. The project would divert Sacramento River water from the North Delta through two giant tunnels to the South Delta to facilitate the export of Northern California water to corporate agribusiness on the west side of the San Joaquin Valley and Southern California water agencies.

“In light of claims raised by nine appellant groups, Council staff recommends that the Council conclude that substantial evidence does not exist in the record to support the Department’s findings that California WaterFix is consistent with the Delta Plan. Staff further recommends that the Council remand the matter to the Department for reconsideration, pursuant to Water Code section 85225.25,” according to the report.

The Council staff found that there was no evidence that indicated the Delta Tunnels project would be operated in a manner that meets Delta water quality standards; that DWR did not use the best available science; that DWR did not provide evidence that water suppliers who would benefit from the tunnels would reduce their reliance on the Delta; and DWR failed to demonstrate that “the project is consistent with respect to compatibility with local land use plans.”

What does this all mean? “That means the tunnels will be stopped if the Council members go along with the staff recommendations,” said Michael Brodsky, lawyer for the Save the California Delta Alliance. “The California Department of Water Resources could revise and resubmit the tunnel project at a later date, but I think that would be unlikely if the vote is that it is not consistent with the Delta Plan.”

Brodsky said the council staff accepted 3 of Save the California Delta Alliance’s main arguments: that the Waterfix is not consistent with D-1641 water quality requirements, particularly that it violates the Export to Inflow ratio; that WaterFix does not respect local land uses because of impacts on recreation and legacy communities; that WaterFix does not comply with the Delta Plan policy to reduce reliance on the Delta as a source of water supply.

”The staff report also finds that WaterFix did not use best available science with regard to sea level rise,” said Brodsky.

Bill Jennings, Executive Director of the California Sportfishing Protection Alliance and board member of the California Water Impact Network (C-WIN), said he agrees with many of the staff conclusions, but disagrees with others.

“On a whole, the staff properly concluded that the California WaterFix is inconsistent with the Delta Plan,” said Jennings. “We were mildly surprised with their findings, but all of the appellant groups made a convincing case that the California Water Fix is simply not consistent with the Delta Plan and Delta Reform Act.”

“The staff agreed with us that the tunnels project doesn’t rely on the best available science and that the beneficiaries of the project have not established reduced water reliance on the Delta and improved regional water self-sufficiency,” he noted. “They have also failed to establish substantial evidence on how they could comply with delta flow objectives, as specified in State Water Board Decision D1641. In addition, they failed to provided adequate evidence that they respect local land use when siting project facilities or restoring habitat.”

Jennings said he disagreed with the staff’s conclusion that the tunnels’ adaptive management plan is consistent with the Delta Plan. For example, he said the WaterFix lacks a final signed adaptive management plan and a financial plan sufficient to ensure implementation of an adaptive management plan.

RTD executive director, Assemblyman Jim Frazier praise staff report

Barbara Barrigan-Parrilla, Executive Director of Restore the Delta, praised the DSC staff for having the courage to issue a report finding the tunnels project inconsistent with the Delta Plan.

“We thank and congratulate Delta Stewardship Council staff for doing the right thing and for having the backbone to assert that the CA WaterFix is inconsistent with the Delta Plan. Restore the Delta and its membership have shown up to countless public meetings, hearings, and workshops to communicate this message for three years now,” she said.

“As Governor-Elect Newsom prepares to take office, we hope he reflects on the DSC’s findings that indicate the tunnels project will not protect, enhance, or restore the Delta,” Barrigan-Parrilla stated. “Newsom won over voters by leaving the impression that he would modernize California. Governor-Elect Newsom has the chance to create his own unique legacy by backing away from this outdated 20thcentury project to pursue 21stcentury alternative projects that actually benefit the public trust.”

“The state of California is ready for innovative water management strategies and local self-sufficiency projects that create a more sustainable, reliable water supply. Newsom could be the leader to make this happen,” she said.

Likewise, Assemblymember Jim Frazier (D-Discovery Bay) praised the staff for issuing such a thorough and accurate report.

“The staff of the Delta Stewardship Council has found the deeply flawed twin tunnels proposal does not respect local communities, reduce reliance on the Delta, or support healthy Delta flows, per requirements of the Delta Plan,” said Frazier in a statement. “These findings validate and confirm what I have been saying from the very beginning about this ill-conceived project.”

Frazier noted that a “certification of consistency” declares a project to be consistent with the coequal goals of the 2009 Delta Plan — and is a necessary regulatory step for any development in the Sacramento-San Joaquin Delta. Nine separate Delta stakeholder groups appealed the certification of consistency submitted by DWR in July.

Council Chair says consistency determination is incomplete, advises DWR to withdraw  

There was no Council action taken at the November 15 public workshop held in Sacramento, but the Council is expected to take action on the determination at their December 20-21, 2018 meeting.

The big news was at the end of the November 15 workshop when Randy Fiorini, the Chair of the Delta Stewardship Council, recommended that the Department of Water Resources further define its Delta Tunnels project and suggested that DWR withdraw its certification of consistency before asking the Council to approve the project.

Council member Frank Damrell echoed Damrell’s comments.

“We’ve heard a lot about timing, prematurity throughout this hearing and this particular workshop … it seems clear to me that the record is not complete, particular on key issues, and those shortcomings are precisely the areas where early consultation benefits everyone in this room,” said Damrell. “This is an adjudicative process; this is not a forum to work out shortcomings. That’s not the purpose. It’s adjudicative by nature. The Department should certainly consider withdrawing its certification and immediately resume early consultation.” More information:…

Part of the reason the Council Members are recommending that DWR withdraw their certification of consistency is that DWR claims “no sensitive receptors” to hazardous materials in North Delta, when research from Deirdre Des Jardins and North Delta Cares shows otherwise:

Des Jardins noted that North Delta Cares’s appeal “cited concerns about release of hazardous materials from construction of the Delta tunnels.”

“It is North Delta Cares’ concern that although CEQA concludes that there are no sensitive receptors exposed to hazardous materials, substances, or waste as a result of construction of the water conveyance facilities under the proposed project and therefore, there would be no impact, the Legacy Town of Hood and its inhabitants […] is ¼ mile from the construction of Intake 3 and ½ mile from construction of Intake 5. These intakes sandwich this Legacy Town and the construction impacts create a hazardous situation for the people and animals living there,” according to the appeal.

Chris Shutes of the California Sportfishing Protection Alliance (CSPA) emphasized the significance of the Council Members’ comments at the November workshop on his blog on the CSPA website:

Since the Delta Stewardship Council must find that WaterFix is consistent with the Delta Plan before DWR can begin construction of WaterFix facilities, “It now appears that there is almost no chance that Delta tunnels will be approved and begin construction before Governor Brown leaves office in January 2019,” said Shutes.

CSPA is part of Appellant Group 3 of the nine appellant groups, whose appeal was filed by Bob Wright with Friends of the River.

For the Certification, the appeals, and the voluminous 30,000+ document record for the DCS’s October hearing, see

Access the Staff Draft Determination Regarding Appeals of Certification of Consistency for California WaterFix at:

List of Appellants

The nine groups appealing the DWR certification are:
(1) the North Coast Rivers Alliance, Institute for Fisheries Resources, Pacific Coast Federation of Fishermen’s Associations, San Francisco Crab Boat Owners Association and Winnemem Wintu Tribe;
(2) Save the California Delta Alliance;
(3) Friends of the River, California Sportfishing Protection Alliance, California Water Impact Network, Planning and Conservation League, AquAlliance, Environmental Water Caucus, Sierra Club California and Restore the Delta;
(4) North Delta Cares Action Committee;
(5) City of Stockton;
(6) Sacramento Regional County Sanitation District;
(7) San Joaquin County, Contra Costa County, Solano County, Yolo County and Local Agencies of the North Delta;
(8) Central Delta Water Agency and South Delta Water Agency; and
(9) County of Sacramento and Sacramento County Water Agency.