Preliminary Geotechnical Work for Delta Project Not Subject to CEQA Piecemealing Prohibition

In Tulare Lake Basin Water Storage District v. Department of Water Resources, 115 Cal. App. 5th 342 (2025), the Third District Court of Appeal held that the Delta Reform Act’s certification-of-consistency requirement does not incorporate CEQA’s whole-of-an-action requirement and prohibition against piecemealing. 

The California Department of Water Resources commenced preconstruction geotechnical work for the Delta Conveyance Plan, a major proposed water tunnel through the Sacramento-San Joaquin Delta. Plaintiffs challenged the project, claiming that DWR was required to obtain a Delta Plan consistency certification under the Sacramento-San Joaquin Delta Reform Act before conducting geotechnical work. Plaintiffs also claimed that DWR’s actions and attempt to separate the geotechnical work from the rest of the Project violated the Delta Reform Act and ran afoul of CEQA’s prohibition against piecemealing. 

The Court of Appeal held that CEQA’s prohibition against piecemealing is not incorporated into the Delta Reform Act’s certification-of-consistency requirement, and DWR was not prevented from treating the preconstruction geotechnical work as separate and distinct from the tunnel project. DWR was therefore not required to submit a consistency certification to the Delta Stewardship Council (the state agency responsible for implementing the Delta Plan) because while the tunnel project was a covered action under the Delta Reform Act, the geotechnical work itself was not. The court reasoned that the purposes of the CEQA and the Delta Reform Act are different. While the anti-piecemealing requirement under CEQA is intended to inform and guide decision makers about all reasonably foreseeable environmental effects before project approval, the Delta Reform Act’s certification of consistency is prepared and submitted after project approval and, unlike an EIR, does not serve as an informational document. The certification instead confirms that the covered action is consistent with the Delta Plan. 

In reaching its decision, the court gave great weight to the Delta Stewardship Council’s interpretation of the Delta Reform Act and its conclusion that the geotechnical work was not a covered action under the Act. The Council had reasoned that the scope of a CEQA project was not necessarily coextensive with the scope of a covered action under the Delta Reform Act, and that a covered action may only be a subset of activity or multiple activities or sub-projects within a single project for CEQA. According to the Council, a public agency need only submit a certification of consistency for an activity that may cause a direct physical change or reasonably foreseeable indirect physical change in the environment, and the activity (1) will occur within the boundaries of the Delta or Suisun Marsh, (2) will be carried out, approved, or funded by the agency, (3) will be covered by one or more provisions of the Delta Plan, and (4) will significantly impact one or both of the Delta Reform Act’s coequal goals. Agreeing with this interpretation, the court held that preconstruction geotechnical work was not covered by any Delta Plan regulatory policies and was therefore not a covered action within the meaning of the Delta Reform Act.