In a published opinion filed October 17, 2025, the Third District Court of Appeal reversed the trial court’s preliminary injunction orders in five related actions prohibiting preconstruction geotechnical work to be undertaken by the Department of Water Resources (“DWR”) in connection with the Delta tunnel project (formally known as the “Delta Conveyance Project”). The Court of Appeal held the trial court erred in interpreting a provision of the Sacramento-San Joaquin Delta Reform Act of 2009 (the “Delta Reform Act” or “Act”; Wat. Code, §85000 et seq.), requiring state agencies to certify to the Delta Stewardship Council that “covered actions” (as statutorily defined) are consistent with the Delta Plan before implementing them. (the “certification of consistency” requirement; id., §85225). Specifically, it rejected plaintiffs’ arguments that the certification of consistency requirement “incorporated” CEQA’s “piecemealing” and “whole of an action” concepts so as to render the proposed preconstruction geotechnical work, which is not a “covered action,” inseparable from the relevant “covered action” – i.e., the Delta tunnel project – and thus unable to proceed absent a certification of consistency. Tulare Lake Basin Water Storage District, et al v. Department of Water Resources (2025) ___ Cal.App.5th ___. Finding plaintiffs had thus failed to demonstrate a reasonable probability of prevailing on the merits of their action, the Court of Appeal accordingly remanded the matters to the trial court with directions to vacate the preliminary injunction orders and reconsider plaintiffs’ motions in light of its conclusion that DWR was not required to submit a certificate of consistency to the Delta Stewardship Council before engaging in preconstruction geotechnical work.
Relevant Factual, Legal and Procedural Background and the Trial Court’s Decision
While it probably needs no introduction to California readers, the Sacramento-San Joaquin Delta and Suisun Marsh (“Delta”) is the most valuable estuary and wetland ecosystem on the west coast of the Americas and the hub of California’s water delivery system, containing unique and invaluable agricultural, recreational, fisheries and wildlife resources of statewide significance. Delta water export serves more than two-thirds of the state’s residents and over two million acres of productive farmland through the State Water Project and Central Valley Project.
The Delta Reform Act of 2009 addressed a “crisis” in the Delta’s then-deemed “unsustainable” management policies, and created the Delta Stewardship Council (“Council”) as an independent state agency charged with adopting and implementing the Delta Plan, a long-term, science-based management plan designed to further two “coequal goals”: (1) providing a more reliable water supply to the state, and (2) protecting, restoring and enhancing the Delta ecosystem. The Act directs the Council to achieve a number of ambitious goals and toward that end requires that state and local land use actions it identifies as “covered actions” be consistent with the Delta Plan. “Covered actions” are plans, programs, or projects (as defined by Public Resources Code, § 21065, part of CEQA) that (1) will occur in whole or part within the Delta, (2) will be carried out, approved or funded by a state or local public agency, (3) are covered by one or more of the Delta Plan’s provisions, and (4) will have a significant impact on achieving one or both of the coequal goals. An agency proposing to undertake a covered action must “prior to initiating [its] implementation . . . prepare a written certification of consistency with detailed findings [regarding its consistency with the Delta Plan]” and submit it to the Council. (Wat. Code, § 85225.) Challenges to certifications of consistency are made by administrative appeal to the Council; if no appeal is filed, the covered action may proceed as proposed, but if an appeal is filed the Council must hold a hearing to resolve it with written findings, unless it determines it lacks jurisdiction or the appeal fails to raise an appealable issue.
The Delta tunnel project – which all parties concede is a covered action – proposes new water diversion and conveyance facilities, including a 45-mile-long tunnel, to divert and deliver up to 6,000 cubic feet of water per second from two new north Delta intakes to State Water Project (and potentially Central Valley Project) export facilities south of the Delta. The preconstruction geotechnical work – which all parties concede is not, by itself, a covered action – proposed specific soil borings, cone penetration tests, and other work to collect data on the geotechnical properties of Delta-area rock and soil materials, and generally to inform project design and construction methods; it was to be carried out prior to tunnel project construction to satisfy final EIR mitigation requirements and advance the tunnel project’s conceptual design, and was also described in the tunnel project’s EIR. It was this work that plaintiffs sought to enjoin, and obtained preliminary injunctions against, in numerous of their related actions challenging the tunnel project, on the basis that it was an inextricable part of that covered action, the performance of which would amount to “initiat[ing] the implementation of [the tunnel project]” and thus require a certification of consistency.
The trial court agreed with plaintiffs, granting the preliminary injunction; it rejected DWR’s arguments that planning and design activities must be distinguished from project “implementation” (as the Council did in its published guidance), and that CEQA’s broad “project” definition should not be conflated with the Delta Reform Act’s definition of a “covered action.” Instead, it found that a “covered action” was defined to mean a “project” as broadly defined by CEQA, and included the geotechnical work described in DWR’s final EIR, which was a “key component” of the tunnel project. DWR sought ex parte to modify the injunction to allow a scaled-down scope of preconstruction geotechnical work, but the trial court denied the application on the ground that such work was still part of the covered action and hence could not proceed without a certification of consistency. When DWR thereafter submitted a certification of consistency to the Council, and plaintiffs appealed it, the Council dismissed the appeals for lack of jurisdiction on the grounds that the subject geotechnical work was not a covered project. On DWR’s appeal of the preliminary injunction orders, the Court of Appeal reversed those orders based on the same rationale.
The Court of Appeal’s Decision
Reviewing de novo the key statutory interpretation issue driving the trial court’s preliminary injunction rulings, the Court of Appeal observed that a “covered action” is a “project” as defined by CEQA that also meets all four of the conditions set forth in Water Code § 85057.5(a), as discussed above. As the parties agreed the tunnel project is a covered action and the preconstruction geotechnical work is not, the dispute centered on whether the Delta Reform Act’s “certification of consistency” requirement incorporates CEQA’s “whole-of-an-action” requirement and its piecemealing prohibition so as to prevent DWR from treating the tunnel project and the preconstruction geotechnical work as separate and distinct for certification purposes. The Court concluded the Act did not incorporate those CEQA requirements in this context, for a number of reasons.
First, the purposes of the two statutory schemes differ. CEQA employs the “whole of an action” and piecemealing concepts to ensure EIRs fully inform decisionmakers of all reasonably foreseeable environmental impacts before project approval. The Delta Reform Act requires certification of consistency with the Delta Plan after project approval, but before implementation of a covered action, and it is not an informational document, but one simply designed to ensure plan consistency. The Court noted it must be “mindful” about applying concepts from another law that serves a different purpose.
Second, the subject preconstruction geotechnical work did not fall within Section 85057.5’s requirements, and the Court found “insufficient indication” the legislature intended the certification requirement to include the CEQA concepts. The Council’s issued guidance on this point indicated the contrary, as it had dismissed plaintiffs, administrative appeal of the certification, explaining the preconstruction geotechnical work was not a covered action. This adjudication of law by an administrative agency with expertise interpreting and implementing the Act’s statutory scheme was well-reasoned and entitled to “great weight”, according to the Court of Appeal, which discussed the Council’s analysis at length and agreed with it. Per the Court: “The record supports a conclusion that the preconstruction geotechnical work will inform the ultimate design of the tunnel project and allow DWR to include detailed findings and document the use of best available science when it ultimately submits the certification of consistency that it acknowledges must be submitted prior to starting construction on the tunnel project.”
Conclusion and Implications
The Court of Appeal’s holding was based on reasoning that can best be summarized as follows: CEQA and the Delta Reform Act are separate statutory schemes with different purposes; the preconstruction geotechnical work does not meet the Delta Reform Act’s requirements for a “covered action” (Wat. Code, § 85057.5); there is insufficient indication that the Legislature intended to incorporate CEQA’s “whole of an action” requirement and prohibition into the Act’s certification of consistency requirement; and the Delta Stewardship Council’s guidance and interpretation of the relevant statutes is entitled to great weight and also supports the Court’s position.
The Court reasoned that CEQA’s “whole of an action” and piecemealing concepts, which mandate a broad definition of a “project”, are meant to enhance the informational quality of pre-approval environmental review and lead to better informed agency approval decisions. Its rejection of plaintiffs’ attempted importation of these concepts into the Delta Reform Act’s certification of consistency requirement recognized (1) that Act’s differing purpose of ensuring post-approval Delta Plan consistency, (2) the difference between design planning and project implementation, and (3) the practical need for preconstruction geotechnical work to refine a project’s design to better support Delta Plan consistency.
But, in the bigger picture, hope is not lost for the many plaintiff governmental agencies and NGOs suing to stop the Delta tunnel project. While plaintiffs lost this particular litigation skirmish, they will no doubt challenge the tunnel project certification of consistency down the road when it is ultimately filed by DWR.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than sixty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com