After releasing the final environmental report (EIR) for the Delta Conveyance Project on December 8, the Department of Water Resources (DWR) certified it on December 21, 2023. The certification of the final EIR is a significant step forward for the Delta Conveyance Project, a key project for the Newsom administration. It also provides the basis for legal challenges, which are all-but inevitable.
The Delta Conveyance Project is the latest in a long line of proposed conveyance projects designed to bring water from northern California to southern California. Different iterations of the project have been discussed for several decades, with key distinguishing features for the Delta Conveyance Project including the fact that there will be a single tunnel constructed to convey water and that it will be underground. Governor Newsom started working on this project shortly after taking office in 2019 and it is a critical part of both California’s Water Resilience Portfolio and Governor Newsom’s Water Supply Strategy. Other recent milestones include DWR’s release of the draft EIR for the project in July 2022 and the Army Corps of Engineers’ release of its draft environmental impact statement in December 2022.
DWR issued press releases for both the release of the final EIR and its certification. The press releases include quotations from Governor Newsom and DWR Director Karla Nemeth, highlighting the project as one designed to modernize the state’s infrastructure while also helping the state adapt to better confront the impacts of climate change on the state’s water supply, including longer and more severe droughts and heavier storms. The press releases also discuss how the project developed during the EIR process. Over 700 letters and 7,000 comments were submitted on the draft EIR and the final EIR addresses all substantive comments. Changes to the project based on feedback included “avoiding the central Delta, avoiding forebays and barge landings, reducing pile driving, undergrounding power near sandhill crane habitat, minimizing acreage needed to store tunnel material, and minimizing the project footprint.”
In certifying the project, DWR selected one of the project’s alternatives, labeled as the “Bethany Reservoir Alignment,” as the version of the project that would move forward. DWR developed the Bethany Reservoir Alignment to reduce environmental impacts, and those decreased impacts provided the justification for DWR selecting the alternative. As part of the certification, DWR also completed other California Environmental Quality Act (CEQA) actions, including adopting findings of fact and a statement of overriding considerations and adopting a mitigation, monitoring, and reporting program.
Despite the selection of the Bethany Reservoir Alignment and other choices made to address parties’ concerns about the Delta Conveyance Project, opposition to the project remains fierce. Numerous organizations put out statements both about the release and the certification of the final EIR. Estimates put the cost of the Delta Conveyance Project around $16 billion, although the state will likely release an official estimate later this year (DWR says the Delta Construction Authority will provide a new cost estimate and a benefit-cost analysis in mid-2024).
The certification of the final EIR moves the Delta Conveyance Project forward and onto its next stages. Those next stages include DWR obtaining numerous state and federal permits/approvals. The next stages also likely include litigation, which seems all-but inevitable at this point. CEQA challenges are extremely common and, with the price tag and established opposition to this project, it would be surprising if there are no CEQA lawsuits. It should also be noted that it is extremely unlikely that opponents could kill the project directly via a CEQA lawsuit given the way judicial review works under the statute. Notwithstanding that limitation, CEQA lawsuits drive up costs and drive out deadlines, which can lessen political will for a project. While the outcome is uncertain, the battles over the Delta Conveyance Project are likely to heat up now that DWR certified the final EIR.
Alex Van Roekel provides counsel to clients on state and federal water law issues including water rights, groundwater management and public policy within the water sector. He also assists clients in proceedings in front of the ...
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