"Covered Action" means a plan, program, or project that meets all of the conditions as defined pursuant to Section 21065 of the Public Resources Code.
Any state or local public agency proposing to undertake a covered action, as defined in Water Code section 85057.5 is encouraged to consult with the council at the earliest possible opportunity, preferably no later than 30 days before submitting its certification to the council pursuant to Water Code section 85225, to ensure that the project will be consistent with the Delta Plan. The council's staff will meet with the agency's staff to review the consistency of the proposed action and to make recommendations, as appropriate. During this early consultation, the agency's staff may also seek clarification on whether the proposed action is a "covered action"; provided that the ultimate determination on whether it is a covered action shall be made by the agency, subject to judicial review.
To assist state and local public agencies, the council is developing a Covered Actions Checklist based on state and local public agencies input. The Checklist will be posted here after it is completed.
CERTIFICATION OF CONSISTENCY:
A state or local public agency that proposes to undertake a covered action, prior to initiating the implementation of that covered action, shall prepare a written certification of consistency with detailed findings as to whether the covered action is consistent with the Delta Plan and shall submit that certification to the council. Water Code Section 85225. Those detailed findings must address consistency with each policy in the Delta Plan that is implicated by the covered action.
Certification of Consistency requests are to be submitted on-line. To assist state and local public agencies in preparing the required certification, the council has developed an on-line Certification of Consistency process to allow for state and local public agencies to demonstrate that a covered action is consistent with the Delta Plan by being fully transparent, disclosing potential environmental impacts, and identifying how best available science will be used in decision-making and adaptive management.
The council is developing the on-line Certification of Consistency form for state and local agency use based on state and local public agencies input. The Certification of Consistency form will be posted here after it is completed.
Any person who claims that a proposed covered action is inconsistent with the Delta Plan and, as a result of that inconsistency, the action will have a significant adverse impact on the achievement of one or both of the coequal goals or implementation of government- sponsored flood control programs to reduce risks to people and property in the Delta, may file an appeal with regard to a certification of consistency submitted to the council. Water Code Section 85225.10. (a)
The appeal shall be filed no later than 30 days after the submission of the Certification of Consistency. If no person appeals the Certification of Consistency, the state or local public agency may proceed to implement the covered action. Water Code Section 85225.15.
The Council is developing an on-line Appeal Form for public use based on state and local public agencies input. The Appeal form will be posted here after it is completed.
ADMINISTRATIVE PROCEDURES GOVERNING APPEALS:
The Sacramento-San Joaquin Delta Reform Act of 2009 grants the Council authority to ensure the consistency of state and local public agency actions with the Delta Plan (see Water Code Sections 85225-85225.30). The Act directs the Council to adopt procedures for early consultation on this matter and also establishes other general guidelines.
Water Code section 85225.30 requires the Council to adopt administrative procedures governing appeals, which are exempt from the normal state rulemaking process. The Delta Stewardship Council adopted these procedures at its Sept. 24 meeting. Read the procedures as adopted.
State and local agencies proposing to undertake a project covered by the Delta Plan must prepare and file a consistency determination with the Council. Any person may challenge that consistency determination by bringing an appeal to the Council. The Council, in turn, must hold a hearing on the appeal and issue written findings, either denying the appeal or remanding the matter to the state or local agency for reconsideration of the proposed project based on the finding that the consistency determination is not supported by substantial evidence in the record before the agency.
The Delta Reform Act also provides a separate process in which the Council may hear appeals with regard to determinations by the Department of Fish and Game (DFG) that the Bay Delta Conservation Plan (BDCP) has met the requirements of Water Code Section 85320 (that focus on compliance with the Natural Community Conservation Planning Act (NCCPA) and the California Environmental Quality Act (CEQA)) for inclusion in the Delta Plan.
This 36-page booklet provides information on a wide range of water issues facing California with particular focus on the Delta. To view the booklet, please click here.
To view the Appeals Procedures adopted by the Council on Sept. 24, 2010, please click here.
The Delta Stewardship Council has updated the timelines for completion of the Delta Plan, the recirculation of the Programmatic Environmental Impact Report and the Notice of Proposed Rulemaking.