In the world of California water, nothing is a sure thing. But when you’re Governor Jerry Brown, even one step forward can seem like two steps back.

The seventeen billion-dollar plan to build two tunnels under the Sacramento-San Joaquin Delta (“Delta”) in California, currently known as California WaterFix (“CA WaterFix”), has been a concern for environmentalists and Central Valley landowners since the plan was initiated in 2005. But in the past two years, the Delta plan has experienced a rollercoaster ride of successes and setbacks. Formerly known as the Bay Delta Conservation Plan, CA WaterFix made headway this summer when, after an extensive ten-year environmental study and scientific inquiry, the Delta plan received the “go ahead” from both federal agencies responsible for the protection of species under the Endangered Species Act (“ESA”) and from the state’s Department of Fish and Wildlife. The U.S. Bureau of Reclamation and the California Department of Water Resources also completed their final Environmental Impact Statement and Environmental Impact Report last year in compliance with federal and state law. Despite overcoming these legal hurdles, construction of the thirty five–mile long tunnels is unlikely to start anytime soon. Experts anticipated the project could begin construction as early as next year, but concerns over cost distribution—in conjunction with current claims alleging that the plan violates the California Environmental Quality Act (“CEQA”)—are likely to slow, if not kill, CA WaterFix’s momentum.

Governor Brown and the California Department of Water Resources proposed the plan known as CA WaterFix. The controversial plan would take water from the Sacramento River and transport it south under several Delta islands via two tunnels located 150 feet underground. The tunnels would end at Clifton Court Forebay. Near the Forebay are pumps that send water south through California’s aqueducts. Proponents hope the Delta plan would improve water flows through the Delta and allow water to flow with fewer interruptions. Roughly thirty percent of municipal water in Southern California comes from Northern California via the Sacramento-San Joaquin Delta. State officials are fearful that the Delta’s current delivery system is outdated and harms the Delta’s ecosystem. They expect the twin tunnels will stabilize the water supply for two-thirds of California in the face of climate change, since the majority of the state’s water is located in the north, but the majority of the state’s population is located in the south. Large southern water districts, like Coachella, Highland, Rialto, Indio, Palmdale and inland San Diego, are predicted to increase their water consumption in coming years. California’s largest supply of clean water is dependent on fifty year–old levees, and experts worry the current system cannot adequately capture and store water when it is available.

Although state officials for the Delta plan argue that the tunnels will improve the Delta’s ecosystem, many environmental groups and government agencies in the Delta region are opposed to the tunnels. They believe that CA WaterFix cannot comply with the ESA, despite biological opinions from the state and federal agencies that suggest otherwise. The possible extinction of Delta smelt has been of particular concern. Consistent abuse (by, for example, overfishing) of one of the continent’s largest wetlands has contributed to the decline of Delta smelt in the area. Delta smelt, Chinook salmon, and steelhead are among the Delta-inhabiting fish protected under the ESA. Current challengers to the Delta plan’s compliance with the ESA likely hope for a result similar to the one in Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), in which the Supreme Court ordered a permanent injunction against the construction of a controversial dam and held that the ESA prohibited completion of a dam where its operation would either eradicate an endangered species or destroy its critical habitat. The dam in Hill was nearly completed when environmental groups brought suit, and Congress had already allocated large sums of public money for the project. In this case, unlike in Hill, construction of the twin tunnels has yet to begin and funding for the project is insecure.

In compliance with the 2009 Delta Reform Act and pursuant to CEQA and the National Environmental Policy Act (“NEPA”), an Environmental Impact Report and an Environmental Impact Statement were finalized last December.

CEQA has historically proven to be a powerful weapon in the courtroom. In Citizens of Goleta Valley v. Board of Supervisors, 801 P.2d 1161 (Cal. 1990), the Supreme Court of California said the courts must “scrupulously enforce all legislatively mandated CEQA requirements.” CA WaterFix may be required to redo the environmental review process if the project’s challengers can prove that the constructions and functioning of the tunnels will harm wildlife, like the Delta smelt. As of the August filing deadline, at least fifty-eight environmental groups and local governments have sued under CEQA in opposition to the Delta plan. The plaintiffs include Sacramento Valley water agencies, Sacramento County, and San Joaquin County.

Many of the lawsuits’ main claims are that the environmental reviews were not properly conducted. The Golden Gate Salmon Association, the Natural Resources Defense Council, the Defenders of Wildlife, and The Bay Institute filed a joint claim against Secretary of Commerce Wilbur Ross, Administrator for Fisheries at the National Oceanic and Atmospheric Administration Chris Oliver, and the National Marine Fisheries Service on June 29, 2017. The plaintiffs’ main claim is that “reliance on the uncertain future mitigation measures to conclude that [CA WaterFix] will not jeopardize the [Chinook salmon] species or adversely modify its critical habitat violates section 7(a)(2) of the ESA.” They assert that a biological opinion’s no jeopardy conclusion must be “reasonably specific, certain to occur, and capable of implementation.” The Bay Institute, the Natural Resources Defense Council, and the Defenders of Wildlife filed a similar claim against Secretary of the Interior Ryan Zinke, the U.S. Fish and Wildlife Service, and its Director Greg Sheehan, also asserting that the biological opinions backing CA WaterFix’s proposal are inadequate.

In addition to the legal challenges, CA WaterFix has also struggled to secure sufficient funding for the project. Many Delta and Westland farmers hold the view that construction of the tunnels will disrupt Delta residents’ culture and lifestyle, so it is unsurprising that they do not want to bare any of the costs associated with the tunnels’ construction—and legally, they do not have to. Brown pledged that local water districts would bear all the costs of construction; however, a recent audit by the Interior Department found the federal government improperly subsidized farmers for a portion of the tunnels’ planning costs. California water districts may have to pay back the improperly contributed $85 million in taxpayer funds.

All the while, getting approval from water districts has been a whirlwind. Westlands Water District, California’s largest irrigation district and a major water agency served by the Central Valley Project, decided not to join CA WaterFix. The Westlands’s board voted against the project in mid-September, asserting the current financial structure of the project was not feasible. The Westlands District said it could not afford to support the project because of a unique cost-allocation formula imposed by the U.S. Bureau of Reclamation on the Central Valley Project. The cost-allocation formula, originating in a 1939 deal from the Roosevelt administration, exempts a large group of water users in the district from helping fund the Delta tunnels. The deal inflates Westlands customers’ costs by several billion dollars. Until recently, Westlands’s vote appeared especially discouraging, but the project is not doomed yet. The largest water district in Southern California, Metropolitan Water District of Southern California, did approve a $4.3 billion buy-in in October to support CA WaterFix. The vote of approval does not ensure the survival of the Delta project, but it is a step in the right direction. Silicon Valley’s water district, the Santa Clara Valley Water District, voted in mid-October to provide “conditional support” for the Delta project. The district offered to contribute to a smaller and less expensive project, offering $200 million instead of the expected $600 million. Brown and his administration are still advocating for twin tunnels, but if more water districts fully supported the building a single tunnel, Brown might have to seriously consider the idea.

The original plan envisioned that the largely urban agencies supplied by the State Water Project would pay fifty-five percent of the construction costs while the largely agricultural districts of the federal Central Valley Project, like Westlands, would pay forty-five percent. One suggested alternative to this financial plan is requiring wildlife refuges and farmers with senior water rights to bear some of the construction costs. However, neither group is legally obligated to contribute to the cost of construction, despite being first in line for the Delta water. It is fair to assume that farmers would be more willing to chip in for the project if it meant more water for them, but if the farmers’ water rights are already being satisfied, they cannot legally enlarge their water use anyway. Another consideration is the farmers’ economic stability and ability to fund a project of this size.

Major water purchasers were expected to continue to vote for or against the funding of CA WaterFix in the late months of 2017, but as of January 2018, the Department of Water Resources is still considering limiting the project to one tunnel instead. A revised plan may command a new set of environmental impact studies and other permits. The one-tunnel option also needs approval from the districts previously supporting the two-tunnels plan. It has also been suggested that rather than build the two tunnels, the state can increase water storage capacity (above and below the ground), reuse and recycle water, and build more water desalination facilities. The fifty-year old system currently in place does not allow the state to capture and store large amounts of storm water in the wetter years. Some state officials believe the Delta plan is the only option for serving the nineteen million Southern Californians. Backers have tweaked the Delta plan constantly since its introduction in 2005, and the plan might see additional changes in the future. Current lawsuits are likely to slow construction plans, especially considering the first round of biological opinions took nearly ten years. If the suits are successful and the opinions must be re-evaluated, construction could be stalled for years. To comply with environmental limits, one proposal has been to build a new diversion point in the Sacramento River in a northern delta that will feed the tunnels without harming fish populations. Current lawsuits will run their course over the next few years, but these suits are by no means a guaranteed halt on the project.

Kate Mailliard

Image: Delta Smelt. Flickr user USFWS/Peter Johnsen, Creative Commons.



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