May 08, 2018
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Long Road Still Ahead for California’s Delta Tunnels Plan

Despite getting a financial boost earlier this month, California’s project to build two new water tunnels still faces big regulatory and legal challenges.

by Tara Lohan

A DECISION BY California’s largest water supplier on April 10 ended months of uncertainty over its role in the funding of California Water Fix, the state’s plan to build new water conveyance infrastructure in the Sacramento-San Joaquin Delta.

The board of the Metropolitan Water District of Southern California voted to chip in $10.8 billion to help Water Fix’s nearly $17 billion price tag for two tunnels that would transport water under the Delta.

Metropolitan’s decision puts the project on a much firmer financial footing, but Lisa Lien-Mager, deputy secretary for communications at the California Natural Resources Agency, said there are a few water agencies that still need to take specific funding commitments to their boards and more details on the project funding will be available in May.

Financing is not the only issue that needs to be addressed. There is still a long list of regulatory and legal hurdles the project needs to clear.

A lengthy hearings process is already under way with the State Water Resources Control Board (SWRCB), which will decide whether to approve a water right change petition filed by California’s Department of Water Resources (DWR) and the U.S. Bureau of Reclamation. The tunnels would require three new points of diversion on the Sacramento River and the hearings, which began in 2016, have been split into several parts.

The first part of the hearings explored whether there were potential impacts on other legal users of water, such as downstream municipalities. And the second part of the hearings, which began in February, is examining the potential impacts on fish and wildlife, as well as how much water needs to flow through the Delta. Those hearings are expected to conclude later this year.

The possibility of a third part to the hearings was discussed earlier this year when the state floated the idea of pursuing a phased construction approach – building one tunnel first and another later – but that’s looking less likely at the moment. Water board staff also said it’s possible that they will have a limited reopening of part one of the hearings if information presented in the second part warrants revisiting previously discussed issues.

The water board has no specific timeline for making its decision and there will be only one ruling for all of the issues addressed in the hearings. “The board’s staff would develop a draft decision acting upon the petition, and then we would bring that draft decision to the board for consideration, so it really depends upon how long that process takes,” said Diane Riddle, assistant deputy director in the SWRCB’s division of water rights. “It depends upon the complexity of the issues we have to address and what comes out of the hearing process.”

Considering the lengthy hearing record already, she said, it could be as short as six or nine months, or as long as several years. “It really depends upon the process and the feedback we get from the board as we draft the order, what decisions they want to make and how much additional time that takes,” she added.

There’s also one other role the state water board plays in the process: it needs to approve the application for a water quality certificationindicating that the project complies with requirements in the federal Clean Water Act.

Then there are the lawsuits filed over Water Fix – nearly 20 have been filed in state court and two in federal court. Most of the cases have been coordinated before one judge in the Sacramento County Superior Court. The initial case management conference was held on March 23 and the next will be on May 24.

Robert Wright, an attorney representing several environmental organizations involved in the litigation against the tunnels project, said that judging by previous lawsuits of a similar nature it could be two or three years before decisions are reached on these legal challenges. And it’s “likely parties would seek a preliminary injunction if they tried to go ahead with the project while litigation was still pending,” he added.

Wright said that Water Fix “violates the California Environmental Quality Act for a number of reasons, but the biggest and most important is the long-term failure to consider what we call a ‘reasonable range of alternatives,’” he said. Those alternatives include recycling and conservation and increasing flows of freshwater through the Delta by decreasing water exports. “It’s as wasteful economically as it would be destructive environmentally,” he said.

Other legal challenges center on the federal Endangered Species Act and the use of bonds to pay for construction of the project.

The DWR does not comment on pending litigation, but Lien-Mager said officials “look forward to continued discussions with our local water agency partners – including those on the federal side – to finalize details and begin construction on this project.”

But if or when that happens is still a long way off.

Originally appeared on | Image Credit: Kelly M. Grow/California Department of Water Resources

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