San Joaquin County Contra Costa County Solano County

  • Slides: 30
Download presentation
San Joaquin County Contra Costa County Solano County Yolo County Local Agencies of the

San Joaquin County Contra Costa County Solano County Yolo County Local Agencies of the North Delta Consistency Appeal Delta Tunnels Consistency Appeal (Cert. ID: C 20185) October 24 -26, 2018

Standard of Review “SUBSTANTIAL EVIDENCE” is NOT A “RUBBER STAMP” STANDARD “Substantial Evidence” must

Standard of Review “SUBSTANTIAL EVIDENCE” is NOT A “RUBBER STAMP” STANDARD “Substantial Evidence” must be of ponderable legal significance, reasonable, credible, and of solid value. (Kuhn v. Dept. of General Services (1994) 22 Cal. App. 4 th 1627, 1633. ) Substantial Evidence is not the same as any evidence, but “substantial proof of the essentials which the law requires” (Toyota Motor Sales U. S. A. , Inc. v. Superior Court (1990) 220 Cal. App. 3 d 864, 871. ) “Substantial Evidence” review focuses on the quality, rather than the quantity, of the evidence. (Toyota Motor Sales U. S. A. , Inc. v. Superior Court (1990) 220 Cal. App. 3 d 864, 871. ) Speculation and conjecture are not substantial evidence. (1996) 44 Cal. App. 4 th 634, 651. ) (Roddenberry v. Roddenberry Inferences may constitute substantial evidence only if they are the product of logic and reason. (Roddenberry v. Roddenberry (1996) 44 Cal. App. 4 th 634, 651. ) An absence of evidence is not the equivalent of substantial evidence. Roddenberry (1996) 44 Cal. App. 4 th 634, 655. ) 2 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT (Roddenberry v.

Standard of Review “SUBSTANTIAL EVIDENCE” Applies Only to Disputed Fact Issues “Substantial Evidence” Standard

Standard of Review “SUBSTANTIAL EVIDENCE” Applies Only to Disputed Fact Issues “Substantial Evidence” Standard of review applies only to disputed questions of fact. (Winograd v. American Broadcasting Co. (1998) Cal. App. 4 th 624, 632. ) Interpreting the Delta Reform Act and the Delta Plan involves questions of law that are reviewed “De Novo” under the Independent Standard of Review, without deference to DWR. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal. 4 th 415, 432; See PG & E Corp. v. Public Util. Comm’n (2004) 118 Cal. App. 4 th 1174, 1194. ) The DSC, not DWR, is the agency charged with implementation of the Delta Reform Act, including creation of the Delta Plan. (See Water Code § 85059. ) 3 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

The Delta Tunnels Project Would Cut Through the Heart of the California Delta The

The Delta Tunnels Project Would Cut Through the Heart of the California Delta The Largest Estuary on the West Coast of North and South America And all of the Counties of the Delta This Project does not respect local land use. (DP P 2) 4 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

DWR Failed to Consider DSC’s 2018 Conveyance Recommendations to Reduce Impacts on Delta Communities

DWR Failed to Consider DSC’s 2018 Conveyance Recommendations to Reduce Impacts on Delta Communities Council conducted a lengthy process during 2016 -2018, including workshops and Council meetings to develop revised conveyance language in the 2013 Delta Plan. Council reviewed those amendments under CEQA and included them in a revised Delta Plan Chapter 3 (WR R 12 a-k) that promote specific options concerning conveyance, storage and operations. Many of those recommendation pertained to protecting the Delta as a place. What is the usefulness of the 2018 Amendments in this process? DWR does not address the Council’s Conveyance Recommendations. 5 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

DWR Incorrectly Claims it Need not Comply with the Council’s Adopted Policies Under 23

DWR Incorrectly Claims it Need not Comply with the Council’s Adopted Policies Under 23 CCR § 5002(b)(1) Each of DWR’s Consistency Determinations contains a footnote claiming that the Project can be found to be consistent with the Delta Plan pursuant to 23 CCR § 5002(b)(1). DWR claims that where full consistency with all relevant regulatory policies may not be feasible, an agency proposing a covered action may nevertheless certify that the action is consistent with the overall Delta Plan by certifying that the action is consistent with the coequal goals themselves. DWR also claims that consistency of the Project with the coequal goals has been already “demonstrated” in the Final EIR/S. (Fn. 1 of each DWR Consistency Determination. ) But: The 2017 Final EIR/S was prepared in an attempt to comply with CEQA/NEPA, not the 2009 Delta Reform Act. 6 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

DWR’s Attempt to Avoid the Requirements of the Delta Plan Should be Rejected -

DWR’s Attempt to Avoid the Requirements of the Delta Plan Should be Rejected - 23 CCR § 5002(b)(1) requires: “a clear identification of areas where consistency with relevant regulatory policies is not feasible, an explanation of the reasons why it is not feasible, and an explanation of how the covered action nevertheless, on whole, is consistent with the coequal goals. ” But DWR has included NO EXPLANATION OF why the Policies are not feasible, only a 5 -page argument about why the Project as a whole is consistent with the Coequal Goals. If DWR’s interpretation of § 5002(b)(1) would make the Council’s requirements meaningless. The Council is supposed to have an enforceable plan. (Wat. Code, § 85001, subdivision (c). ) 7 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

The Project Does not Meet the “coequal goals”: • The Coequal goals are “the

The Project Does not Meet the “coequal goals”: • The Coequal goals are “the two goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem. • The coequal goals shall be achieved in a manner that protects and enhances the unique cultural, recreational, natural resource, and agricultural values of the Delta as an evolving place. ” (Wat. Code § 85054; see also § 85300(a). ) The Project decreases water supply reliability for the entire Delta region, fails to protect, restore or enhance the Delta ecosystem, and fails to protect and enhance the Delta as a place. 8 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

Project decreases water supply reliability for the entire Delta region Municipal Supplies City of

Project decreases water supply reliability for the entire Delta region Municipal Supplies City of Stockton and Antioch’s drinking water would be degraded. Diversions from the Freeport facility for EBMUD and Sacramento County would be threatened by increased incidence of significant reverse flow events. North Delta Water Agency water quality contract terms would be violated more often. Agricultural Supplies Increased salinity at agricultural diversions throughout the Delta. Resulting buildup of salts in soils would affect agricultural productivity. Lowered water levels in the vicinity of the proposed North Delta diversions. Interference with groundwater recharge would affect groundwater wells. 9 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

10 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

10 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

The Project Does nothing to Restore and Enhance the Delta Ecosystem The Delta Tunnels

The Project Does nothing to Restore and Enhance the Delta Ecosystem The Delta Tunnels Project does not include any restoration beyond what is required for mitigation. According to DWR, the Project: • “[S]eeks compliance with endangered species laws under different statutory authorizations and for a period less than 50 years, and includes only limited amounts of habitat restoration to reduce and mitigate for significant environmental impacts in compliance with CEQA and other regulatory requirements. (WR P 1, p. 2 -38. ) At best, DWR proposes restoration equal to the Project’s habitat impacts; therefore, characterizing this required mitigation as “enhancement” is disingenuous and misleading. Vague references to restoring more natural flows are unsupported and have nothing to do with restoration. • East West flow would still be subject to disruption from the Delta Cross Channel operations during continued use of the South Delta pumps. • New reverse flows created in the North Delta. 11 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

Project Does not Protect and Enhance Delta as a Place DWR claims “Not every

Project Does not Protect and Enhance Delta as a Place DWR claims “Not every covered action must meet the statutory objectives independent of the coequal goals” and cites Water Code § 85020(b). • But § 85020(b) says it is the policy of the State to protect and enhance the Delta, and doesn’t support DWR’s claim. DWR claims “other projects, landowners, citizens, and public agencies” must contribute to the achievement of these goals. • This turns the requirement for covered actions to protect the Delta on its head by putting the onus on others while DWR takes actions that harm the Delta. Including mitigation required by CEQA, and vague references to an undefined ”Community Benefits Fund” would not adequately protect, and certainly do not enhance the Delta. For a project to be consistent, it must protect and enhance the Delta, which this Project does not. 12 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

DWR’s Consistency Determination is Premature In March 2016 Council staff advised DWR that: “[I]t

DWR’s Consistency Determination is Premature In March 2016 Council staff advised DWR that: “[I]t would be better to wait until DWR has a full project description and a ruling from the SWRCB on their change in point of diversion before submitting a certification of consistency to the Council. ” (DCL-233; see also DCL-3, p. 5. ) • The CEQA and NEPA review for the project is incomplete. • Supplemental EIR not certified. • Supplemental EIS still out for public comment. Significant footprint changes proposed in the Supplemental EIR/S, creating new and different impacts on water users and landowners. Given changes in financing (virtually no CVP contractor participation), Project is likely to be operated in a different manner also than was assumed in the 2017 Final EIR/S. Pressing forward now places an unfair burden on the Council and the public to review DWR’s Consistency Determination while the project is still changing. 13 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

Project not yet Fully Defined - Open Questions Is the Draft Supplemental EIR/S part

Project not yet Fully Defined - Open Questions Is the Draft Supplemental EIR/S part of this review or not? DWR claims the refinements reduce environmental effects, by further addressing localized issues associated with footprint components of the Project. • To the extent this is true – will those changes be adopted by DWR and Reclamation? • Why was the Draft SEIR/S submitted as part of this Consistency Review if the revisions are not to be considered? Will Bureau of Reclamation participate in the Project or not? • Reclamation has not yet acted on the NEPA review and is not part of Consistency Review. • 2017 EIR/S indicates Project relies on about half of diverted water coming from Reclamation’s water rights. • If CVP does not participate, would there be adequate SWP water to serve the scale of the Project at the North Delta Diversions? No evidence provided regarding this issue. Are SWP and CVP contract amendments part of project or not? • The amendments are necessary to operate the Project have not yet been disclosed to the public. (Cf. WR P 2, section 5004. ) 14 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

Wide and Uncertain Range of Proposed Operations Hinder Consistency Review 15 Oct. 24, 2018

Wide and Uncertain Range of Proposed Operations Hinder Consistency Review 15 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

How would the Project be Operated? DWR claims proposed Project is CWF H 3+

How would the Project be Operated? DWR claims proposed Project is CWF H 3+ not Boundary 1 and Boundary 2. DWR has provided modeling primarily pertaining to the proposed initial operating criteria CWF H 3+ and prior iterations. At the same time, under real time operations and adaptive management, DWR seeks to operate with a great deal of flexibility, within the full range, with no further formal agency approvals. (See DWR-1010, DWR-1021, CCCSC-59. ) All initial operating criteria for CWF H 3+ (listed in DWR-1143 2 nd Rev. ) are subject to adaptive management: MS. MESERVE: Dr. Chilmakuri, is it your understanding that all the criteria in DWR 1143 2 nd Revised would be subject to change under adaptive management? WITNESS CHILMAKURI: Yes. (SWRCB Transcript, August 14, 2018, p. 15. ) 16 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

Project Would Not Take More Water in Wet Years and Less Water in Dry

Project Would Not Take More Water in Wet Years and Less Water in Dry Years The 2018 Delta Plan promoted conveyance that would “move more water during wetter periods when supplies are available for both environmental and consumptive uses such that water can be [ex]ported less from the Delta in dryer periods when native fish are more vulnerable. ” (2018 Delta Plan, p. 99. ) DWR attempts to promote the Project as consistent with the co-equal goals, alleging it would captures more water in wetter periods and reduces exports in drier periods when the Delta ecosystem is most vulnerable, the socalled “Big Gulp, Little Sip” concept. (See, e. g. , WR P 1, p. 3 -2. ) 17 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT • Project does not provide more likelihood of the SWP/CVP actually taking “Big Gulps” when there is more water in the system, and “Little Sips” when there is less water. • No operational requirements for Project that would require “Big Gulp, Little Sip” operations, and insufficient south of Delta water storage for water that might otherwise be exported from the Delta during wet periods. • DWR’s promises that the Project would export more in wet period and less in dry periods is nothing more than a slogan. • CWF H 3+ modeling shows increases in total exports during periods of low outflow – 30% increase above typical existing maximum of 11, 280 cfs. (CCC-SC-50. )

18 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

18 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

DWR Failed to Use BAS with Respect to Water Quality The DISB and Council

DWR Failed to Use BAS with Respect to Water Quality The DISB and Council staff identified DWR’s failure to apply Best Available Science. (G P 1 (b)(3). ) DWR’s response was to double down on the outdated and incomplete science upon which it had previously relied and to defer application of BAS to a later date. Even where DWR conceded that Council staff offered relevant literature for consideration, DWR claimed, without analysis, that such literature would not change the basic conclusion from the FEIR/S. (See DCL-230, p. 32. ) Considering the breadth of Council staff’s concerns over the scientific underpinnings of the Project and the FEIR/S, and DWR’s inadequate responses (see DCL-230), DWR has failed to provide substantial evidence that the Project is consistent with G P 1 (b)(3). 19 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

Inconsistency with ER P 1 Delta Flow Objectives and G P 1 (b)(3) Best

Inconsistency with ER P 1 Delta Flow Objectives and G P 1 (b)(3) Best Available Science Flaws in the Delta Tunnel’s compliance with ER P 1 and G P 1 (b)(3) include: (a) DWR’s supporting information is focused on just one operational scenario (now CWF H 3+) and inadequate information provided to support full range of proposed operations. (b) D-1641 Export/Inflow ratio was modeled by excluding the exports by the Project through the new proposed North Delta intakes. (c) DWR’s most recent modeling for the CWF H 3+ initial operations scenario included a Rio Vista minimum outflow of 3, 000 cfs from January-August, but this is not included in the currently proposed Project; (d) DWR’s modeling assumed closures of the Delta Cross Channel (DCC) based on the Sacramento River flow just upstream of the DCC, but the Incidental Take Permit requires DCC operations be based on the Sacramento River flow at Freeport, which is upstream of the proposed North Delta Diversions; (e) DWR failed to show that the full range of operations proposed (Boundary 1 to Boundary 2) would be consistent with WR P 1 and other Delta Plan requirements. (See DWR-1143, second revision, pp. 2, 7. ) 20 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

D-1641 Includes an Export to Inflow Ratio (ER P 1 ) Yet DWR intends

D-1641 Includes an Export to Inflow Ratio (ER P 1 ) Yet DWR intends to measure Sacramento River inflows downstream of the proposed North Delta diversions, after the water is diverted. Intended benefits of the Export/Inflow ratio include: “Reduce fish, egg, and larvae entrainment and mortality at the pumps through export restrictions and intensive real-time monitoring/response designed to detect presence of fish in areas adjacent to the pumps. ” (CCC-SC-62, p. 2 -19. ) “[E]xports should decrease during those years when fresh water inflow to the Delta is decreased and a larger percentage of fish and other aquatic organisms are geographically distributed further upstream where their susceptibility to export losses is increased. ” (CCC-SC-62, p. 2 -19. ) These concerns are equally applicable in the North Delta and the Project as proposed is not consistent with D-1641 or ER P 1. 21 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

Project would Result in Low Flows and Increased Temperatures, Exacerbating HABs Project would chronically

Project would Result in Low Flows and Increased Temperatures, Exacerbating HABs Project would chronically reduce flows at Freeport to levels mirroring critically dry years and increase water residence times, two effects clearly shown to influence HAB growth and proliferation. 22 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

DWR’s Approach to Harmful Algal Blooms Inconsistent with BAS Policy (Delta Plan App. 1

DWR’s Approach to Harmful Algal Blooms Inconsistent with BAS Policy (Delta Plan App. 1 A) required DWR to identify scientific question of Project’s HABs impacts as a hypothesis, aggregate and synthesize the available information from this/similar watersheds, use/develop relevant conceptual model, and consult/apply external expertise. G P 1 (b)(3) was not followed. Final EIR/S concludes that HABs impact was not significant without scientific basis. • To the extent modeling was relied upon, it has changed. Both CWF H 3+ and BA H 3+ exports in July, August and October are much larger than for Scenarios H 3 and H 4 and the NAA. In these critical late summer/fall months, minimum bypass flows are only 5, 000 cfs. Yet, DWR has proposed no mechanism to monitor when a threshold for HABs has been exceeded and no mitigation for this Project impact. The impacts, monitoring, and adaptive management for Project-influenced HABs should have been developed and applied using the Council’s BAS approach. In addition to being a public health threat, the Project’s exacerbation of HABs formation would also negatively affect recreational and other unique values of the Delta. 23 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

Conceptual Groundwater Recharge Model Diversions through North Delta would reduce groundwater recharge by Sacramento

Conceptual Groundwater Recharge Model Diversions through North Delta would reduce groundwater recharge by Sacramento River, interfere with wells and complicate compliance with SGMA. Project is inconsistent with GP P 1 Mitigation Measures and WR P 1 Water Supply Reliability 24 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

DWR Failed to Prepare a Sustainable Groundwater Management Plan as Required by PEIR MM

DWR Failed to Prepare a Sustainable Groundwater Management Plan as Required by PEIR MM 21 -2 2017 FEIR/S acknowledges surface water elevations on River would reduce surface area through which water exfiltrates to groundwater. This reduces groundwater recharge for adjacent subbasins relying on that exfiltration. While DWR will apparently monitor groundwater in a 4 mile swath of the river, the duration of groundwater monitoring under Mitigation Measures GW-1 and GW-2 is just 5 years into operation. • This is far too short to determine whether changes to groundwater are occurring as a result of the Project. There are no enforceable commitments to do anything about regional impacts on groundwater levels caused by the Project. This approach is inconsistent with PEIR Mitigation Measure 21 -2. Covered actions must include either the applicable feasible mitigation measures identified in the 2013 Delta Plan PEIR or substitute mitigation measures that are equally or more effective. 25 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

Potential Presence of Fish in Vicinity of Proposed North Delta Diversions* 26 Species Listing

Potential Presence of Fish in Vicinity of Proposed North Delta Diversions* 26 Species Listing Status Presence-Adult Presence-Juvenile FEIR/S Reference** Delta Smelt ESA: Threatened CESA: Endangered Year round Sep-Dec pp. 11 A-3 -5 Longfin Smelt CESA: Threatened Jan-Dec pp. 11 A-30 -32 Winter Run Chinook CESA: Endangered Nov-June Nov-March p. 11 A-50 Spring Run Chinook ESA: Threatened CESA: Threatened Nov-Jan Jan-Aug/Nov-Dec p. 11 A-77 Central Valley Fall- and Late Fall-Run Chinook Salmon CA Species of Special Concern Year round Dec-June pp. 11 A-103 -104 Central Valley Steelhead ESA: Threatened CA Species of Special Concern June-March Feb-May pp. 11 A-129 -130 Sacramento Splittail CA Species of Special Concern Year round Apr-June p. 11 A-146 Green Sturgeon ESA: Threatened (Southern distinct population) ESA: Species of Special Concern (Northern distinct population) Jul-Dec Jan-Dec p. 11 A-162 White Sturgeon Not listed/not well studied Year round p. 11 A-178 Pacific Lamprey Not listed/not well studied Likely Year round Possibly spring/summer months pp. 11 A-191 -192 River Lamprey Not listed/ not well studied Likely Year round Possibly spring/summer months p. 11 A-198 -199 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT Inadequate Protection of Biological Resources PEIR Mitigation Measure 4 -2 There are fish in the vicinity of the proposed North Delta Diversions throughout the year. Yet bypass flow requirements are minimal -- just 7, 000 and 5, 000 cfs, depending on the month. Fish screens will not have dynamic baffling requested by NOAA Fisheries. Not real time operations. No attempt to protect unlisted fish that are also Public Trust Resources.

Construction Impacts on Greater Sandhill Cranes not Avoided Staten Island Example Supp. EIR/S shows

Construction Impacts on Greater Sandhill Cranes not Avoided Staten Island Example Supp. EIR/S shows noise contours appear to extend over about a third of the island. DWR failed to follow BAS and PEIR Mitigation Measure 4 -2. 27 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

AMM 20 would be Ineffective in protecting the Greater Sandhill Crane, A Fully Protected

AMM 20 would be Ineffective in protecting the Greater Sandhill Crane, A Fully Protected Species under State Law Flaws in AMM 20: • All requirements to avoid impacts on Cranes are subject to feasibility regarding location and timing of construction impacts. • Construction is already planned in the winter Crane season despite the promise to minimize it, and there is no actual requirement that no new disturbances occur when the Cranes are present, unless it is feasible. • New Powerlines are not required to be undergrounded, which is the only way to prevent take. • Exhaustive qualifiers and non-binding language make it aspirational at best and it provides very little real avoidance of Project impacts on Greater Sandhill Cranes. DWR Fails to provide protection for Greater Sandhill Cranes as required by PEIR Mitigation Measure 4 -2. 28 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

Please remember: the Delta is much more than a conduit in a plumbing system.

Please remember: the Delta is much more than a conduit in a plumbing system. It truly is an "evolving place" and home to unique communities, human and natural. As the largest estuary on the West Coast of the Americas, it is one of our nation's environmental gems, and the Council must protect it. Please grant our Appeal of DWR’s Consistency Determination. 29 Oct. 24, 2018 Delta Counties and LAND Consistency Appeal PPT

Thank you for your attention! Any Questions? DCL Delta Tunnels Consistency Appeal (Cert. ID:

Thank you for your attention! Any Questions? DCL Delta Tunnels Consistency Appeal (Cert. ID: C 20185) October 24 -26, 2018