Restore the Delta: State Water Resources Control Board Fails To Conduct Impartial And Fair Hearings Regarding California WaterFix
From Restore the Delta:
Today, the State Water Resources Control Board issued a ruling that restarts California WaterFix hearings despite a change in the project for the proposed Delta tunnels (link to ruling to here). Recent motions to stay the hearing included intense criticism from Delta cities, counties, farmers, and environmental groups (protestants). The protestants had filed motions to stay the hearings as testimony in the tunnels hearings to date had assumed two tunnels constructed and operated simultaneously. Protestants argued that DWR’s recent announcement of a phased-in project, in which one larger tunnel would be built first with a second tunnel added later, would impair their cases. Due process, they argued, would require delay in the hearings to permit protestants a fair chance to prepare revised testimony.
Beginning in August 2015, Governor Brown’s tunnels project, branded as “California WaterFix,” has sought a water rights permit from the State Water Resources Control Board. Until just recently, its developer, the California Department of Water Resources (DWR), has described the project as two tunnels fed by three separate intakes along the Sacramento River that would send water south to Clifton Court Forebay and the Banks Pumping Plant near Tracy.
When water contractors raised significant cost and financing concerns, DWR came to the State Water Board on February 8, 2018, to announce officially that it would build one tunnel with two intakes as the first phase of the tunnels project, but that it was not changing its water rights application for two tunnels and three intakes. DWR also stated it would prepare a “supplemental environmental impact report” on project changes (expected in June 2018).
Making matters worse, California Public Records Act requests in December 2017 by some protestants revealed that Water Board officials held numerous meetings and email contacts discussing with DWR staff modeling and other technical issues associated with the tunnels permit application—an apparent violation of the Board’s own “ex parte” rules. The Board rejected calls from protestants to stop the hearing and resolve the accusation of ex parte violations immediately to restore trust in the process for all concerned on February 6, 2018.
Several Protestants Respond:
Bill Jennings, executive director for California Sportfishing Protection Alliance, said, “The State Water Resources Control Board has discarded due process, abandoned any pretense of being an independent regulatory agency, and revealed its intention to approve this disastrous project regardless of testimony and evidence.”
Tim Stroshane, policy analyst for Restore the Delta, stated, “The State Water Resources Control Board ruling today confirms that the Board is letting the California Department of Water Resources drive the hearing process on the tunnels. Their rationale is flimsy and poorly justified, claiming it is more efficient to have the hearing go forward despite uncertainties about the project that are of DWR’s making. The tail is wagging the dog here.”
Attorney Thomas Keeling (representing San Joaquin County) said, “The California Department of Water Resources petitioned for approval of the twin tunnels project, staggering in its cost and its likely adverse environmental, social, and economic impacts. Now, as the hearing on that petition enters its third year, DWR has substantially changed the project. It has pulled a bait-and-switch on not only the counties, cities, environmental protection groups, and others who oppose the twin tunnels – but on the State Water Board itself. DWR’s brazen disregard for the rules governing the Board’s decision-making is stunning. Yet, now the Board has given DWR another free pass, confirming the fears of those who say the Board operates on two sets of rules: one for DWR, and one for everyone else. California deserves better. Delta communities deserve better. The Delta ecosystem deserves better.
“In addition, the unlawful ex parte communications disclosed in connection with the Board’s hearing on the project not only violate California law – they undermine the integrity and reputation of the Board itself. Through our motion, the Board was given an opportunity to step-up, fulfill its legal and ethical obligations, and restore public confidence in its decision-making. Sadly, for all Californians – not just the Delta — the Board has declined to take that opportunity. As a result, the ex parte communications will irrevocably taint the Board’s decision-making on the project going forward.”
Deirdre Des Jardins, principal with California Water Research added, “DWR is proposing a huge new diversion on the Sacramento River with no limits on the rate of pumping, and no bypass requirements in the permit from the State Water Resources Board. Pumping limits will only be triggered by the presence of endangered Winter or Spring Run Chinook salmon, and will be determined in the future. It is difficult to see how the petition ever got accepted for filing, let alone got this far.”
Bob Wright, Friends of the River senior counsel said, “The State Water Resources Control Board has had two faces. With one face they told the public and protestants, no ex parte (secret and private) communications with us. With the other face, they had numerous ex parte meetings with the Department of Water Resources to secretly help DWR get approval for the diversion change they need for the water tunnels.”
Barbara Barrigan-Parrilla, executive director for Restore the Delta, concluded, “The State Water Board today has shredded the last bit of faith we had that the hearing process would be conducted fairly and equitably—that the Board would hold to a standard of conduct that would be above reproach, regardless of the decision they may make on Governor Brown’s tunnels fiasco. Clearly, they are under the thumb of Governor Brown, and no longer function in an independent manner.”
Byron Bethany Irrigation District: Landmark Court ruling strengthens senior water rights
From Byron Bethany Irrigation District:
In a decision that reaffirms and solidifies the oldest water rights in California, the Santa Clara County Superior Court ruled Wednesday that the State Water Resources Control Board (SWRCB) lacks jurisdiction to enforce priority of rights between pre-1914 and riparian water rights.
Byron-Bethany Irrigation District (BBID) filed the action, challenging unlawful curtailment notices issued by the SWRCB in June 2015 to pre-1914 water rights holders, including BBID. Judge Brian Walsh also determined that the curtailment notices violated BBID’s due process rights because they commanded immediate curtailment of water rights and threatened large fines without providing water right holders an opportunity to challenge the findings upon which the notices were based.
“We strongly agree with the Judge’s decision,” said BBID General Manager Rick Gilmore. “This is a step toward a more equitable, protective process that ensures senior water rights holders across California will be able to rightfully exercise their property rights to the fullest extent of the law.”
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