Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

PERIODIC LEGAL UPDATEDELTA PLAN ADOPTION

LITIGATIONJanuary 24, 2014

Central Valley Flood Protection Board Meeting Agenda Item No. 6B

Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

Periodic Legal Updates The Board has expressed interest in legal

issues and cases that have the potential to affect facilities and programs within its jurisdiction

The Board takes a leadership role in major planning efforts and in tracking other efforts potentially impacting SPFC facilities

The Board’s mission includes taking an integrated approach to flood protection for the purpose of public safety, economic stability, and environmental stewardship.

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Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

Delta Reform Act In an effort to address several ongoing water issues in California,

new legislation went into effect in 2009, including the Sacramento San Joaquin Delta Reform Act of 2009 (Water Code Sections 85000 – 85350).

This Act was the culmination of a multi-year effort by the Governor’s Blue Ribbon Task Force to recommend a comprehensive strategic plan for the environmental and water supply challenges in the Delta.

Water Code § 85200 established the Delta Stewardship Council and gave it broad powers to draft a plan for the Delta based on the coequal goals of improving water supply reliability and improving the Delta ecosystem.

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Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

Delta Plan Covered Actions

Water Code §85022 states that once the Plan is approved all “covered actions,” including land use planning and development within the Delta, must conform to the Delta Plan policies. The Council will enforce the Delta Plan policies ultimately as regulations.

Water Code section 85057.5 broadly defines covered action as, "a plan, program, or project as defined (by CEQA) that meets all of these conditions: Will occur, in whole or in part, within the boundaries of the Delta or

Suisun Marsh Will be carried out, approved or funded by the state or a local public

agency Is covered by one or more provisions of the Delta Plan Will have a significant impact on achievement of one or both of the

coequal goals or the implementation of government sponsored flood control programs to reduce risks to people property and state interests in the Delta

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Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

The Plan Adoption The Delta Plan was adopted by the Council in May 2013, after eight

drafts, 100 public meetings and nearly ten thousand comments. The Plan includes 87 provisions (73 recommendations and 14 policies). The Plan’s Executive Summary states that there are six large things that

the Plan seeks to do: Move water more efficiently Capture and store surplus water better Provide adequate seaward flows Bring back wetlands Restrict urban development and support farming and recreation at

the Delta core Flood proof the Delta by improving levees and providing overflow

zones

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Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

The Lawsuits

Within days of its adoption, seven separate lawsuits were filed against the Delta Stewardship Council citing a failure to comply with CEQA and seeking to invalidate the plan

Three suits filed in Sacramento County Three suits filed in San Francisco County One suit filed in San Joaquin County

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Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

Sacramento County Cases

State Water Contractors; Alameda County Flood Control and Water Conservation District, Zone 7; Santa Clara Valley Water District; MWD, Antelope Valley-East Kern Water Agency; Mojave Water Agency and San Bernardino Valley Municipal Water District PEIR failed to address impacts of local supply projects that

will be needed to replace Delta water DSC exceeded their authority by writing policies that would

reduce Delta output rather than make the existing supply more reliable

Placed ecological concerns over supply

Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

Sacramento County Cases

North Coast Rivers Alliance, Pacific Coast Federation of Fishermen's Associations, San Francisco Crab Boat Owners Association and the Winnemem Wintu Tribe

Parties with livelihoods tied to the Delta fisheries The PEIR failed to adequately address the cumulative impacts,

particularly of the BDCP The Plan will not reduce reliance on the Delta in contravention of

the Delta Reform Act San Luis & Delta Mendota Water Authority and Westlands Water

District Central Valley Project Contractors The Plan fails to address a number of CEQA requirements Delta Plan sets up the Delta Stewardship Council as the “Supreme

Regulators” of the Delta, exceeding their statutory authority

Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

San Francisco County Cases

Save the California Delta Alliance Delta Stewardship Council failed to promulgate concrete and

specific action plan, basically creating a “rubber stamp” for the Bay Delta Conservation Plan

Central Delta Water Agency, South Delta Water Agency, Local Agencies of the North Delta, Lafayette Ranch, Inc., and Cindy Charles The Plan fails to protect the areas of origin, will affect those who

live in the Delta more than anyone else, thousands of acres of private land will be taken, and enough farmland will be converted to habitat to be “visible from space”

Members of the plaintiffs include RD 3, 150, 307, 317, 407, 551, 554, 755, 813, 999, 1002, 2067

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Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

San Francisco County Cases

San Francisco Suits (cont.) California Water Impact Network; Friends of the River; California

Sport fishing Protection 13 Alliance; AquAlliance; Restore the Delta, and Center for Biological Diversity Plan fails to establish quantifiable goals (from CWIN’s attorney) “The Delta Plan violates CEQA in ten

different ways. It fails to achieve the coequal goals of Delta ecosystem restoration and water supply reliability established by the Act. The Delta Plan may be the most incomplete environmental document I've ever seen. The Council 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 in the Delta; and the Delta Protection Commission's economic sustainability report.”

Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

San Joaquin County Case

City of Stockton City boundaries and sphere of influence lie partially within

the area covered by The Plan Stockton residents have higher unemployment and higher

poverty rates than the rest of the state and will be disproportionately affected by compliance with the mandates in the Delta Plan

Economic impacts from the Plan would indirectly lead to urban decay

Plan failed to take into account areas of origin in assessing impacts

Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

The Lawsuits The lawsuits were recently consolidated in

Sacramento County and assigned to Judge Michael Kenny

Deputy Attorney General Deborah Smith has been assigned as part of the Delta litigation team to defend the Delta Stewardship Council

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Central Valley Flood Protection Board Meeting – Agenda Item No. 6B

QUESTIONS

?Presented by: Leslie Gallagher

Prepared by: Brian Cullum

Design Review by: Moises Gonzalez

Reviewed by: Moises Gonzalez

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