Sacramento Superior Court Ruling: A Bullet In The Heart

For Immediate Release: May 20, 2016
Michael Jackson, President, California Water Impact Network, 530-283-1007
Bill Jennings, Executive Director, California Sportfishing Protection Alliance, 209-464-5067
Osha Meserve, Senior Counsel, Local Water Agencies of the North Delta, 916-425-9914
Bob Wright, Senior Counsel, Friends of the River, 916-442-3155 *207
John Buse, Senior Counsel/Legal Director, Center for Biological Diversity, 323-533-4416
Barbara Barrigan-Parrilla, Executive Director, Restore the Delta, 209-479-2053


Sacramento Superior Court Ruling: A Bullet In The Heart
Of The Delta Plan

Stockton, CA — Contrary to the Delta Stewardship Council’s claim that the Sacramento Superior Court upheld the Delta Plan except for two needed refinements, Superior Court Judge Kenny put a bullet in the heart of the Delta Plan.

Judge Kenny ruled that the Delta Plan failed to include quantified or otherwise measurable targets associated with achieving reduced Delta reliance, reduced environmental harm from invasive species, restoring more natural flows, and increased water supply reliability, in accordance with the Delta Reform Act.  He also ruled that the Delta Plan failed to provide a flow policy that includes "quantified or otherwise measurable targets" and failed to promote options for water conveyance and storage systems.

While the Stewardship Council talks vaguely about “quantifiable performance measures,” the Decision specifically says, “A measurable target would therefore be a numeric goal that can be identified. Accordingly, to satisfy the requirement of ‘quantified or otherwise measurable targets’ the Court finds that any analysis of the Delta Plan must be informed by numeric goals that will be evaluated at a date certain to determine compliance or the measure of progress that has been accomplished. This is also consistent with the legislative direction that the Delta Plan be ‘legally enforceable’.”

Judge Kenny also discusses reduced reliance on the Delta and increased water supply reliability: “Section 85021 provides that California’s policy is to reduce reliance on the Delta in meeting California's future water supply needs through a statewide strategy of investing in improved regional supplies, conservation, and water use efficiency."  In other words, improved water reliability is not simply a matter of better conveyance in the Delta; it is improving the water supply in local areas in order to reduce the need for water from the Delta.

The Court also found that, because the Delta Plan was inadequate, the Court did not need to address the adequacy of the environmental documents supporting the inadequate Delta Plan.  In addition, the Court ruled that the state and federal contractors did not prove their allegations against the Delta Stewardship Council.  The environmental plaintiffs agree with the Delta Stewardship Council (DSC) that the contractors’ arguments against the authority of the DSC to regulate the state and federal projects in the Bay/Delta were unfounded.

Statements by Plaintiffs:

Michael Jackson, CWIN:

While the Court found that it didn’t need to rule on the massive inadequacies in the existing environmental documents, it should be remembered that the Delta Independent Science Board found the Recirculated DEIR/SDEIS “sufficiently incomplete and opaque to deter its evaluation and use by decision-makers, resource managers, scientists, and the broader public.”  And the recent Independent Panel Report for the WaterFix Aquatic Science Peer Review concluded that “best available science for the greater Delta area is inhibited by important knowledge gaps and that science often provides only piecemeal and quantitatively uncertain projections of future environmental conditions in the Delta area and of fish responses to those conditions” and, consequently, “the substantial uncertainties of nearly all Biological Assessment are the dominant theme of the Panel’s findings.”  A grossly inadequate environmental document and substantial uncertainties of nearly all Biological Assessment analyses are a poor foundation for a massively expensive project to re-plumb an estuary.

Bill Jennings, California Sportfishing Protection Alliance:

Judge Kenny put a bullet into the heart of the Delta Plan and didn’t even have to address the myriad inadequacies of the environmental document because the absence of specific numerical targets to reduce exports, lessen environmental harm, restore natural flows, increase conservation and reuse to improve water reliability, coupled with the failure to consider alternatives to the tunnels, rendered the Delta Plan inconsistent with the Delta Reform Act.  These failures go the heart of the Delta Plan and its supporting analyses and will require preparation of a new Plan and environmental document, which will further demonstrate the financial and environmental infeasibility of the WaterFix tunnels project. 

Osha Meserve, LAND:

The Delta Stewardship Council was unfortunately more interested in promoting the Delta Tunnels than carrying out the statute under which the Council was formed.  For the Council to regain any credibility, it must address these flaws.  If the Council chooses instead continue to bow to those that are intent on destroying the Delta by taking out its remaining fresh water, the Council serves no legitimate purpose and should be dissolved.

Bob Wright, Friends of the River:

The court is sending the Delta Plan back to the Delta Stewardship Council to revise the Delta Plan to do what the Delta Reform Act requires it to do. It is time for the government agencies charged with protecting the Delta to follow our laws instead of trying to ignore or evade our laws.

John Buse, Center for Biological Diversity:

The Delta Plan was supposed to address the Delta’s ecological crisis and protect endangered fish and wildlife.  This ruling recognizes that it has failed.

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