The Browns' water legacy goes to court

Sacramento  Bee
Sacramento County sues to block Delta tunnels – and it’s not alone
By Dale Kasler And Ryan Sabalow
Sacramento County led a cascade of area governments suing the state in an effort to block the Delta tunnels, saying the $17 billion project would harm local farmers, endangered fish and low-income communities at the south end of the county.
The lawsuits come as the tunnels project, championed by Gov. Jerry Brown as a means of improving south state water supplies, makes headway with environmental regulators. In July, the state announced that the massive project complies with the California Environmental Quality Act, or CEQA, and wouldn’t hurt fish, wildlife or human health in the Sacramento-San Joaquin Delta.
Elected officials in the Sacramento area long have opposed the project and have formed an alliance, called the Delta Counties Coalition, dedicated to fighting the tunnels. Sacramento County filed its lawsuit Thursday, as did the Placer County Water Agency, the cities of Stockton and Antioch and a consortium of commercial fishermen’s groups. Additional lawsuits were expected to be filed by Monday, the legal deadline for attacking the tunnels project with a CEQA suit.
 “There are many more coming,” said Matthew Emrick, attorney for the city of Antioch.
Sacramento’s suit, filed in Sacramento Superior Court, say the state Department of Water Resources is ignoring the environmental harm the tunnels will create in the Delta, in violation of CEQA. The county’s lawyers argued that “almost 700 acres of county farmland will be rendered unusable” during the 13-year construction period, and once the project is operational it will degrade the quality of the water flowing through the Delta by diverting portions of the Sacramento River’s clean water flows through the tunnels.
Sacramento’s case is aimed at “really protecting Sacramento’s access to water and the Delta way of life,” said Robyn Truitt Drivon, the county counsel.
The suits were hardly a surprise; state officials said last month they expected litigation to come rolling in. CEQA can be a powerful tool for slowing or even halting a big development project. Legal experts say it’s likely the CEQA suits will get consolidated, but that process alone could take months.
“I think the initial effort will be to get all of the various lawsuits that are filed before one judge, so you don’t have multiple judges addressing similar issues,” said Barton “Buzz” Thompson, Jr., a Stanford University water law expert.
Erin Mellon, a spokeswoman for the state Department of Water Resources, declined comment on the suits.
The first round of lawsuits came in June, after the U.S. Fish and Wildlife Service and the National Marine Fisheries Service said the tunnels, known as California WaterFix, wouldn’t jeopardize the continued existence of such endangered species as the smelt and Chinook salmon. Days later, the federal agencies were sued by the Golden Gate Salmon Association, the Natural Resources Defense Council, Defenders of Wildlife and The Bay Institute. The suit says the agencies’ declaration violated the U.S. Endangered Species Act.
Meanwhile, Butte County officials announced last week that they will file their own suit against the state over the tunnels.
Supervisor Bill Connelly said locals are fearful of losing their water rights to Southern California. He said Butte officials also believe Lake Oroville – the state’s second-largest water-supply reservoir and a popular Butte County recreation hub – would be sucked dry each year to feed the tunnels.
“Overall, it’s just the arrogance of the rest of the state in not considering the people that supply their water, and our needs,” Connelly said.
The tunnels project would divert a portion of the Sacramento River’s flow into a pair of underground tunnels, delivering the water directly to the massive federal and state pumping stations in the south Delta. By doing so, Brown’s administration argues, the project would overhaul the way water flows through the Delta and reduce harm to fish.
In particular, the tunnels largely would remedy the damaging “reverse flow” phenomenon that occurs when the pumps are operating. Often the pumps have to be shut off to keep fish from peril. That would enable the state and federal governments to keep the pumps running more reliably.
Environmentalists and others reject the argument that the tunnels will protect salmon and other fish. “The project sacrifices rather than saves the Delta’s fish and wildlife,” according to a lawsuit filed Thursday by a group of commercial fishermen’s associations.
The pumps supply water to Southern California, parts of the Bay Area and farms in the San Joaquin Valley.
The suits are gushing in as the south-of-Delta water agencies deliberate on whether they want to pay for the project.
These farmers say they may not pay for Delta tunnels pushed by Gov. Brown
By Dale Kasler
The governor’s proposed Delta tunnels ran into a roomful of skeptics Monday – an influential group of San Joaquin Valley farmers who remain unconvinced the controversial project will deliver the water they need at a price they’re prepared to swallow.
Three weeks after the tunnels received a crucial green light from federal environmental regulators, the $17.1 billion project got a cool reception from nearly 100 growers who farm in the powerful Westlands Water District. Provided with detailed financial projections at a Westlands board meeting for the first time, the farmers suggested they aren’t ready to sign onto the plan.
Investment bankers from Goldman Sachs & Co. said debt repayment could balloon farmers’ water costs to as much as $495 an acre-foot under the most expensive scenario, or about triple what Westlands growers currently pay. However, the Goldman bankers said the costs could be reduced to the $200 per acre-foot range depending on how the debt is structured.
Those figures were too rich for Todd Neves, a Westlands board member.
“My initial thought, right off the bat, is no way this will work,” the tomato and almond farmer said in an interview. “Those numbers might work for a city, Metropolitan and them. For a farmer, none of the crops that I grow can support these numbers.”
After a decade of preliminary planning, Westlands and other water agencies south of the Sacramento-San Joaquin Delta are beginning to drill into the details of the tunnels plan, in the expectation of deciding in September whether to invest the billions needed to make the project a reality. While the Metropolitan Water District of Southern California – which serves millions of urban customers – is expected to sign onto the project, the sprawling Westlands district, which serves portions of Fresno and Kings counties, has showed more reluctance.
“It’s a lot of money for not a lot of water,” said William Bourdeau, a Westlands board member and an executive with Harris Farms, whose well-known hotel and restaurant near I-5 served as a venue for the board meeting.
Without Westlands’ support, the tunnels’ fate would become far more uncertain.
Much of the farmers’ reluctance revolves around the project’s myriad complexities, and the fact that the tunnels might not generate a substantial amount of additional water for them.
The project would burrow a pair of tunnels along the Sacramento River, just south of Sacramento, and divert a portion of the river’s flow directly to the giant pumping stations at the south end of the Delta. Gov. Jerry Brown’s administration said this re-plumbing effort would reduce the harm the pumps do to Delta smelt and other endangered species, allowing the pumps to deliver water more reliably to urban Southern California and the San Joaquin Valley.
However, the exact amount of water that could be pumped won’t be known for years, largely because many of the environmental regulations governing Delta pumping operations are still evolving.
A consultant from the state Department of Water Resources said the Delta pumps would likely be able to deliver an average of 4.7 million to 5.2 million acre-feet of water south each year if the tunnels were built. The range could be considerably wider depending on environmental restrictions.
The current average is 4.7 million acre-feet.
The lack of specificity was clearly frustrating to the Westlands farmers.
“We can’t make a definitive assessment based on the information we have today,” said Don Perrachi, president of the Westlands board. He said the board wouldn’t take on “billions of dollars of debt without reasonable assurance” that the tunnels will provide a significant amount of affordable water.


Winnemem Wintu, Fishing Groups Sue to Block Ecosystem-Killing Delta Tunnels
Dan Bacher
On August 17, a California Indian Tribe, two fishing groups, and two environmental organizations joined a growing number of organizations, cities and counties suing the Jerry Brown and Donald Trump administrations to block the construction of the Delta Tunnels.
The Winnemem Wintu Tribe, North Coast Rivers Alliance (NCRA), Institute for Fisheries Resources (IFR), Pacific Coast Federation of Fishermen’s Associations (PCFFA) and the San Francisco Crab Boat Owners Association filed suit against the California Department of Water Resources (DWR) in Sacramento Superior Court to overturn DWR’s approval of the Twin Tunnels, also know as the California WaterFix Project, on July 21, 2017
”The Winnemem Wintu Tribe has lived on the banks of the McCloud River for thousands of years and our culture is centered on protection and careful, sustainable use of its salmon,” said Caleen Sisk, Chief of the Winnemem Wintu Tribe near Mt. Shasta. “Our salmon were stolen from us when Shasta Dam was built in 1944. “
”Since that dark time, we have worked tirelessly to restore this vital salmon run through construction of a fishway around Shasta Dam connecting the Sacramento River to its upper tributaries including the McCloud River. The Twin Tunnels and its companion proposal to raise Shasta Dam by 18 feet would push the remaining salmon runs toward extinction and inundate our ancestral and sacred homeland along the McCloud River,” Chief Sisk stated.
The Trump and Brown administrations and project proponents claim the tunnels would fulfill the “coequal goals” of water supply reliability and ecosystem restoration, but opponents point out that project would create no new water while hastening the extinction of winter-run Chinook salmon, Central Valley steelhead, Delta and longfin smelt, green sturgeon and other imperiled fish species
The project would also imperil the salmon and steelhead populations on the Trinity and Klamath rivers that have played a central role in the culture, religion and livelihood of the Yurok, Karuk and Hoopa Valley Tribes for thousands of years.
The tunnels would divert 9,000 cubic feet per second of water from the Sacramento River near Clarksburg and transport it 35 miles via two tunnels 40-feet in diameter for export to San Joaquin Valley agribusiness interests and Southern California. The project would divert approximately 6.5 million acre-feet of water per year, a quantity sufficient to flood the entire state of Rhode Island under nearly 7 feet of water, according to the lawsuit.
The groups pointed out that this “staggering” quantity of water – equal to most of the Sacramento River’s flow during the summer and fall – would “exacerbate the Delta’s severe ecological decline,” pushing several imperiled species of salmon and steelhead closer to extinction.
Stephan Volker, attorney for the Tribe and organizations, filed the suit. The suit alleges that DWR’s approval of the California WaterFix Project and certification of its Environmental Impact Report violates the California Environmental Quality Act (“CEQA”), the Sacramento-San Joaquin Delta Reform Act of 2009, and the Public Trust Doctrine.
“The Public Trust Doctrine protects the Delta’s imperiled fish and wildlife from avoidable harm whenever it is feasible to do so,” according to the lawsuit. “Contrary to this mandate, the Project proposes unsustainable increases in Delta exports that will needlessly harm public trust resources, and its FEIR dismisses from consideration feasible alternatives and mitigation measures that would protect and restore the Delta’s ecological functions. Because the Project sacrifices rather than saves the Delta’s fish and wildlife, it violates the Public Trust Doctrine.”
Representatives of the fishing and environmental groups explained their reasons for filing the lawsuit.
“The Twin Tunnels is a hugely expensive boondoggle that could pound the final nail in the coffin of Northern California’s salmon and steelhead fishery,” stated Noah Oppenheim, Executive Director of the Pacific Coast Federation of Fishermen’s Associations (PCFFA). “There is still time to protect these declining stocks from extinction, but taking more water from their habitat will make matters far worse.”
Larry Collins, President of the San Francisco Crab Boat Owners Association, stated, “Our organization of small, family-owned fishing boats has been engaged in the sustainable harvest of salmon and other commercial fisheries for over 100 years. By diverting most of the Sacramento River’s flow away from the Delta and San Francisco Bay, the Twin Tunnels would deliver a mortal blow to our industry and way of life.”
Frank Egger, President of the North Coast Rivers Alliance, stated that “the imperiled salmon and steelhead of the Sacramento and San Joaquin Rivers are one of Northern California’s most precious natural resources. They must not be squandered so that Southern California can avoid taking the water conservation measures that many of us adopted decades ago.”
Chief Sisk summed up the folly of Brown’s “legacy project,” the Delta Tunnels, at her speech at the “March for Science” on Earth Day 2017 before a crowd of 15,000 people at the State Capitol in Sacramento.
“The California Water Fix is the biggest water problem, the most devastating project, that Californians have ever faced,” said Chief Sisk. “Just ask the people in the farmworker communities of Seville and Alpaugh, where they can’t drink clean water from the tap.”
“The twin tunnels won’t fix this problem. All this project does is channel Delta water to water brokers at prices the people in the towns can’t afford,” she stated.
The lawsuit filed by Volkers joins an avalanche of lawsuits against the Delta Tunnels. Sacramento, San Joaquin and Butte Counties have already filed lawsuits against the California WaterFix — and more lawsuits are expected to join these on Monday, August 21.
On June 29, fishing and environmental groups filed two lawsuits challenging the Trump administration’s biological opinions permitting the construction of the controversial Delta Tunnels.
Four groups — the Golden Gate Salmon Association (GGSA), the Natural Resources Defense Council (NRDC), Defenders of Wildlife, and the Bay Institute — charged the U.S. Fish and Wildlife Service and National Marine Fisheries Service for violating the Endangered Species (ESA), a landmark federal law that projects endangered salmon, steelhead, Delta and longfin smelt and other fish species. The lawsuits said the biological opinions are “arbitrary, capricious, an abuse of discretion.”
On June 26, the Trump administration released a no-jeopardy finding in their biological opinions regarding the construction of the Delta Tunnels, claiming that the California WaterFix “will not jeopardize threatened or endangered species or adversely modify their critical habitat.”
Over the past few weeks, the Brown administration has incurred the wrath of environmental justice advocates, conservationists and increasing numbers of Californians by ramrodding Big Oil’s environmentally unjust cap-and-trade bill, AB 398, through the legislature; approving the reopening of the dangerous SoCalGas natural gas storage facility at Porter Ranch; green lighting the flawed EIS/EIR documents permitting the construction of the California WaterFix; and issuing a “take” permit to kill endangered salmon and Delta smelt in the Delta Tunnels.