"Avalanche" of Lawsuits Hit DSC Over Bay Delta Plan

Posted on 18 June 2013

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Dan BacherBy Dan Bacher

The North Coast Rivers Alliance, Pacific Coast Federation of Fishermen's Associations, San Francisco Crab Boat Owners Associations and Winnemem Wintu (McCloud River) Tribe on Friday, June 14, filed a lawsuit against the Delta Plan approved recently by the Delta Stewardship Council.

Attorney Stephan C. Volker filed the litigation in the Sacramento County Superior Court, charging that the Delta Plan violates the California Environmental Quality Act (CEQA), the Sacramento-San Joaquin Delta Reform Act of 2009 and the Public Trust Doctrine.

Zeke Grader, Executive Director of the Pacific Coast Federation of Fisherman's Associations, explained the reason for the lawsuit.

Sacramento Delta at flood stage, 2009. Photo credit: Doc Searls"It's important to fire a shot across the bow," said Grader. "The notion of taking huge amounts of water from the Bay-Delta Estuary with little regard for fish has got to be stopped. We must stop any plan that supports the status quo or more diversions from the Delta. It is time instead to come up with a sound water program for all Californians."

According to the complaint, "This is a public interest citizen suit to enforce California's environmental laws and protect the Delta from imminent ecological collapse. Petitioners bring this action to challenge the Delta Stewardship Council's approval of its Final Delta Plan and certification of its Program Environmental Impact Report (PEIR) on May 16, 2013."

First, the document says the plan and PEIR violate CEQ by failing to examine the impacts of increased water exports and to consider feasible alternatives to them.

CEQA requires the Council to fully examine the impacts of increasing Delta exports, and to carefully consider alternatives that would avoid and reduce these impacts. Contrary to CEQA, the Council's PEIR does neither. Although it purports to analyze the environmental impacts of the Delta Plan as required by CEQA, its excessive generality precludes meaningful public review, and fails to adequately consider feasible alternatives and mitigation measures that would prevent further ecologic collapse. Because the PEIR falls far short of achieving CEQA's twin mandates of identifying and avoiding significant environmental harm, it violates CEQA.

Second, the complaint says the plan violates the Delta Reform Act by not properly addressing the co-equal goals of ecosystem restoration and water supply.

The Delta Reform Act requires the Council to complete a Delta Plan to achieve the "coequal goals" of providing a more reliable water supply for Californian and protecting, restoring and enhancing the Delta ecosystem. The Delta Plan does not achieve these goals. Instead it accommodates unsustainable increases in Delta exports that will thwart protection and restoration of the Delta ecosystem. Because the Delta Plan will destroy rather than save the Delta's imperiled fish and wildlife, it violates the Delta Reform Act.

Third, the complaint addresses the Plan's violation of the Public Trust Doctrine.

The Public Trust Doctrine protects the Delta's imperiled fish and wildlife from avoidable harm whenever it is feasible to do so. Contrary to this mandate, the Delta Plan accommodates unsustainable increases in Delta exports that will needlessly harm public trust resources, and dismisses from consideration feasible alternatives and mitigation measures that would protect and restore the Delta's ecological functions. Because the Delta sacrifices rather than saves the Delta's fish and wildlife, it violates the Public Trust Doctrine.

This lawsuit is the fourth against the Delta plan to date. Westlands Water District and San Luis and Delta-Mendota Water Authority on May 24 filed a lawsuit to require the Delta Stewardship Council to revise the Delta Plan "to be consistent with the 2009 Delta Reform Act."

On June 14, the State Water Contractors Association filed a separate lawsuit challenging the Delta Plan and the PEIR. A press release from the association states that the Delta Plan "exceeds the legislature's express grant of jurisdiction," and "violates the California Environmental Quality Act."

And on Monday, a statewide coalition of fishing, environmental and farming groups announced the filing of a lawsuit to stop the Delta Plan, a document that lays the groundwork for the Delta water export tunnels.

The groups filing the litigation include the California Water Impact Network (C-WIN), California Sportfishing Protection Alliance, AquAlliance, Restore the Delta, Friends of the River and Center for Biological Diversity.

"The Delta Reform Act gave the Delta Stewardship Council a historic opportunity to remedy 40 years of water policy failures," said Santa Barbara resident Carolee Krieger, executive director of the California Water Impact Network (C-WIN), a statewide water advocacy organization. "The Council instead failed to use the best available science - biological or economic - and adopted a status quo program that fails to fix the Delta or the water supply problem. The Council failed to honor its own mandate: the adoption of an effective strategy for the distribution of water and the preservation of the Delta."

Bill Jennings, Executive Director of the California Sportfishing Protection Alliance, recently predicted an "avalanche" of lawsuits against the Delta Stewardship Council and the plan to build the peripheral tunnels. It appears that the avalanche has begun.

Caleen Sisk, Chief and Spiritual Leader of the Winnemem Wintu Tribe, said, "The water wars are well under way in California. It's really about the transport of Northern California water by ignoring the 'First in Time - First in Use' Water Rights of the Northern California Tribes!"

"We need to bring to the forefront water rights of tribes in securing water for both the tribes and salmon," said Sisk. "We need to make sure the studies conducted by the agencies are accurate in what happens to the Delta and the rivers. We need to have in those studies a plan for restoration of the river systems, including clean up of the rivers."

"It's one thing to talk about transporting water all over the state. It's another thing to talk about and plan for the needed clean-up that will bring the salmon back, along with allocating funds to replace outdated sewage systems and water pipes in disadvantaged communities. Our position is that the real issues need to be addressed with real resolve," Sisk concluded.

Dan Bacher is an editor of The Fish Sniffer, described as "The #1 Newspaper in the World Dedicated Entirely to Fishermen."