DWR Certifies EIR for WaterFix, Triggering 30-Day Deadline for Opponents to File Suit

by Downey Brand LLP

On July 21, 2017, the California Department of Water Resources (“DWR”) certified the final environmental document and issued its Notice of Determination for the California WaterFix, a significant new water infrastructure component proposed by DWR and United States Bureau of Reclamation. DWR’s action triggered a 30-day statute of limitations to raise CEQA challenges to the project, which has been the subject of steadily accelerating public discussion and debate over the last two years.

WaterFix, sometimes referred to as the Delta Tunnels, would divert water from the northern Sacramento-San Joaquin River Delta just south of Sacramento, under water right permits held by DWR and Reclamation. According to its advocates, WaterFix is intended to improve and update the existing Delta conveyance systems, while preserving the vulnerable species populations that rely on Delta waters. The plan calls for the construction of three north Delta intakes, each capable of diverting 9,000 cubic feet per second, feeding into two 40-foot-wide, 30-mile-long tunnels. The tunnels would divert a portion of the water currently flowing from the Sacramento River through the Delta and out to the Pacific Ocean directly to the State and Federal water projects’ existing export facilities in the south Delta. Proponents say these new diversions would provide needed flexibility to divert water from the northern Delta during periods when conditions for diversion in the southern Delta are not ideal due to endangered species protections, water quality requirements, and other constraints. Opponents have raised concerns that the modeling associated with the Project is unrealistic, that the operational parameters of the WaterFix are unclear, and that the EIR/EIS fails to appropriately analyze or mitigate for impacts to water supply, flood control facilities, and agricultural resources, among others.

The document certified by DWR on July 21 was jointly prepared by DWR and Reclamation CEQA and the National Environmental Protection Act (“NEPA”). DWR and Reclamation began working on the predecessor to WaterFix, the Bay Delta Conservation Plan (“BDCP”), in 2006. The BDCP included both the construction of the Delta Tunnels and measures aimed at improving the ecological health of the Delta estuary through a 50-year federal Habitat Conservation Plan (“HCP”) and state Natural Communities Conservation Plan (“NCCP”). To this end, the BDCP included restoration of more than 100,000 acres of wetland and wildlife habitat. The Draft Environmental Impact Report/Environmental Impact Statement (“DEIR/EIS”) for the BDCP was released for public comment in December 2013. After two years of public comment, DWR and Reclamation removed the habitat restoration components of the original project and issued a Recirculated Draft EIR/Supplemental Draft EIS (“RDEIR/SDEIS”) under the “WaterFix” moniker. A Final EIR/EIS was released in late December 2016.  The final document certified by DWR in July 2017 included that document, as well as a document entitled “Developments after Publication of the Proposed Final Environmental Impact Report.” DWR adopted Findings of Fact and a Statement of Overriding Considerations, as well as a Mitigation, Monitoring, and Reporting Program at the same juncture.

The approval is one of several required before the WaterFix project can move forward. In August 2015, DWR and Reclamation submitted a petition to the State Water Resources Control Board requesting changes to those agencies’ existing water right permits in order to carry out the WaterFix Project. Before the SWRCB can approve the change, it must first determine that approval of the petition will not injure any legal user of water, cause adverse impacts to the environment, or contravene the public interest.  Counties, cities, water contractors, local agencies, environmental groups, landowners, and community members, have all participated in that hearing process, which has been described as “the largest and most complex in the state’s history.” Part I of that on-going administrative proceeding is nearing completion.  Part II of that process will address the question of whether the proposed changes to the permits will cause injury to fish, wildlife, and public trust uses. No hearing dates have been set for Part II. However, testimony and evidence offered in connection with the SWRCB hearing was directly addressed in DWR’s “Developments after Publication of the Proposed Final Environmental Impact Report.” Though the SWRCB hearing officers have been careful to avoid argument regarding the sufficiency of environmental review under CEQA at this stage in the hearing, the potential impacts of the project on water users have been the source of considerable debate in that proceeding.

Separately, the proposed operations of the project (and in particular, the long-term operations of the State and Federal water projects) will be the subject of Biological Opinions by the United States Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (“NMFS”) issued under the federal Endangered Species Act, as well as a similar permit approval by the California Department of Fish and Wildlife under California’s counterpart statute.

The certified WaterFix EIR/EIS, which ultimately totaled over 73,000 pages of impact analysis, mitigation measures, and responses to public comments, concluded that while significant impacts are likely to result, they are acceptable in light of the anticipated benefits of the project. That document and its attendant analysis are available online.  Reclamation has not yet issued a formal approval or Record of Decision on the project.

Our CEQA attorneys are carefully tracking these legal developments, and will offer thoughts and analysis in future alerts as this situation (and the complicated legal issues surrounding it) evolves.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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