Posted by: Deirdre Des Jardins | April 15, 2019

Secretary Bruce Babbitt and the CALFED Framework for the Delta

Former Interior Secretary Bruce Babbitt has called for creation of a “Bay-Delta Compact,” which he describes as a stakeholder drafted framework for action on the Bay Delta.   It is worth looking at how the CALFED agreement which Babbitt helped negotiate in the 1990s fell apart.

The major components of CALFED included:

  • Ecosystem Restoration
  • Water Quality
  • Water Supply Reliability
  • Levee Integrity

The components of the CALFED “comprehensive package” were negotiated with stakeholders, including environmental, fishing, and Delta groups.

The CALFED Environmental Water Account

CALFED also had an Environmental Water Account program, which provided for purchases of ecosystem water from willing sellers.   Environmental groups rapidly became disillusioned with the Environmental Water Account program.  In 2008, the Natural Resources Defense Council commented on the Environmental Water Account EIR/EIS:

From 2001-2004, the EWA provided only 29% on average of the expected 195,000 acre-feet of operational assets …. These shortfalls have occurred while exports from the Delta have reached record high levels and the ecosystem has continued spiraling downward.  Clearly, the EWA experiment has not performed as planned.

The agencies have turned the EWA on its head and, instead of using it to supplement the resources needed and required for fish protection, have used it as an excuse to short the environment and avoid committing those mandatory resources.  Unless the agencies make very clear that limited EWA assets cannot be used as a reason not to take an action that would help protect or restore imperiled fish, it should be discontinued.

Because of crashing pelagic fish populations, in 2006, the Center for Biological Diversity, the Natural Resources Defense Council and the Bay Institute filed an emergency petition to change the listing for the Delta Smelt to “endangered” from threatened.   A period of intense litigation over federal Endangered Species Act protections in the Delta followed the filings.   In 2009, the State Water Contractors argued that the revised federal Biological Opinions would result in “waste and unreasonable use” of water under the California Constitution.  The argument did not prevail, and the ESA restrictions on diversions in the Delta were upheld.


A Failure of Governance

Meanwhile, the cost of the CALFED program became a major issue for the state legislature. The Ecosystem Restoration Program commitments were $150 million a year, and the Environmental Water Account cost $50 million a year. With the state’s growing budget crisis, and a lack of apparent progress on restoring the Delta ecosystem, the cost of the program became an issue. Governor Schwarzenegger directed a review of the CALFED program by the Little Hoover Commission in 2005.  The report included the following recommendation:

Recommendation:  Policy-makers must adopt clear and specific goals for the CALFED program and fortify those goals with budget and legislative authority.

  • Set clear, specific goals for CALFED. The Legislature must put in place goals that communicate to the implementing agencies and the stakeholders the State’s priorities and preferred strategies for restoring the estuary and meeting water needs.
  • Ensure the implementing agencies have sufficient authority and resources to succeed. The Legislature must embed the CALFED goals in the authorizing statutes of the implementing agencies, empower those agencies to achieve their missions, and provide sufficient staff and funding to succeed.  (p. 47.)

In 2006, the legislature moved all the funding for CALFED from the Bay-Delta Authority to the Secretary for Natural Resources.  Correspondence by the CALFED Independent Science Board in 2008 stated that there was insufficient funding to even finish developing performance metrics for progress in the main program areas.

As a result of the Little Hoover Commission report and general dissatisfaction with CALFED governance, the Delta Stewardship Council was created by the Delta Reform Act in 2009.   The Bay-Delta Authority was dissolved and the responsibilities were transferred to the newly created Delta Stewardship Council.   But the governance problems continued.  The Delta Stewardship Council dropped the CALFED water quality program, leaving consideration of effects of Delta contaminants on fish to the chronically underfunded State Water Resources Control Board. The goals in the CALFED Ecosystem Restoration Program, which included restoration of at risk native fish populations, were not included in the Delta Stewardship Council’s new Delta Plan. Environmental groups also argued that the measures in the Delta Plan requiring “reduced reliance on the Delta” were inadequate. The performance measures in the Delta Plan were ruled inadequate by Judge Michael Kenney in the Sacramento Superior Court in 2016.   The case is currently being appealed.

Babbitt should examine the reasons for the failure of his previously negotiated collaborative solution for the Delta before suggesting a new one.



By Bill Kier and Deirdre Des Jardins

The California State Water Resources Control Board is in the middle of a comprehensive review and update of the Bay-Delta Water Quality Control Plan, which sets water quality measures and flow requirements to protect Delta fisheries.  In a repeat of political interference with previous major Bay-Delta Water Quality Control Plan Updates, Governor Gavin Newsom has appointed a new Water Board Chair and has directed the Secretaries of Natural Resources and the California Environmental Protection Agency to engage in negotiations with the Trump administration and water contractors on Voluntary Settlement Agreements to implement the update.

Jennifer Pierre, the general manager for the State Water Contractors, published a breathless Op Ed calling for a “fundamental reset” of the State Water Resources Control Board’s regulatory approach to the Bay-Delta Water Quality Control Plan. Instead of setting regulatory flow targets, Pierre calls for future management to be based on “adaptation and collaboration.”

Dr. Jeff Mount of the Public Policy Institute of California has also advocated for “flexibility” in allocating water for the environment.  In a January 2019 seminar for the Delta Stewardship Council science program, Mount stated:

 “In our view, that means treating it like a water right that has the ability to both store and trade water… What it did in Australia where they set something like this up is suddenly the environment moves from being a constraint on the system to being a partner on the system.  Somebody sits at the table with the other water right holders and is managing that body of water for the ecosystem but also as a partner with the folks in the watershed.  So trading and storage is extremely important for management flexibility.”

Mount’s glowing reference to the Australian model makes one wonder if he has ever stepped foot in Australia, or seen the misery there.  This year has seen millions of dead fish in the Murray-Darling Basin from low flows and harmful algal blooms.


Jan 29 fish kill on the Darling River at Menindee   Source:  Sydney Morning-Herald

A panel of experts, convened by the Australian Academy of Science, found serious deficiencies in governance and management.   In a February 18, 2019 press release, the Chair of the expert panel, Professor Craig Moritz, stated:

“Our review of the fish kills found there isn’t enough water in the Darling system to avoid catastrophic outcomes. This is partly due to the ongoing drought. However, analysis of rainfall and river flow data over decades points to excess water extraction upstream.”

In Cry me a river: Mismanagement and corruption have left the Darling dry, an Op Ed published March 2018 in the Sydney Morning-Herald, Hellen Vivian opined:

there is no escaping the state of this once magnificent river. It’s like a giant neon emergency signal flashing across the four most populous states in the country. Depleted, despoiled, often poisonous and since 2001 frequently dry, the Darling River is an emblem of poor government, mismanagement, greed and anti-democratic activity.

In sum, there is nothing new or exciting about water diverters managing a block of water for the ecosystem.  The Australian corruption and mismanagement shows the catastrophic impacts that could occur in California if those who profit from water diversions are charged with managing flows to protect fisheries.

About the authors

Bill Kier is a certified fisheries scientist who during his long professional life has been a California Department of Fish and Game field scientist, program manager and environmental division chief; an assistant Secretary of the California Resources Agency; a California State Senate consultant to committees on fish, wildlife, natural resources and water resources; developer and Director of the Senate’s office for research and policy development; and, since 1986, a developer of, and Principal with Kier Associates.  His consulting trips have taken him to the coastal estuaries of eastern Australia as well as the Pacific Northwest, Alaska, the Gulf of Maine, and France’s Loire River.

Deirdre Des Jardins, principal at California Water Research, has a background in nonlinear dynamics, chaos theory, and computational modeling.  She is a former researcher at NASA Ames Research center, the Center for Nonlinear Studies at Los Alamos National Laboratory, the Santa Fe Institute, and the UC Santa Cruz Bioinformatics Group.  She has done research and policy analysis on California developed water issues since 2009, including climate change, water management, and regime change in the Delta ecosystem.

Posted by: Deirdre Des Jardins | April 1, 2019

WaterFix “Executive Sponsor” and Project Risk Management

Who has been the Senior Planning Manager in charge of the WaterFix Project?  John Bednarski, Metropolitan Water District’s WaterFix project manager, refused to answer the question in the State Water Resources Control Board’s hearing on the project. The answer may lie in an obscure arrangement for a WaterFix project “Executive Sponsor.”

According to information provided to water agencies, the Senior Planning Manager of the WaterFix project has been the president of an obscure company in Idaho called 5RMK. 5RMk provides project planning, estimating and risk management services. The Department of Water Resources chose 5RMK to be the Independent Cost Estimator for the WaterFix Project. But 5RMK has been providing other services as well. According to a powerpoint presentation to the Santa Clara Valley Water District in 2017, 5RMK offers the following services:

· Estimating, scheduling, project planning
· Permitting, siting assessments, environmental compliance
· Program & construction management
· Claims support, [legal] defense & dispute resolution

A resume provided by Patrick Pettiette, the President of 5RMK, to Santa Clara Valley Water District and Metropolitan Water District referred to Pettiette as Executive Sponsor and Senior Planning Manager for the WaterFix Project. An Executive Sponsor usually has the following roles:

· Has ultimate authority and responsibility for a project or program
· Approves changes to scope
· Finds additional funds for scope changes
· Approves deliverables

Pettiette’s Executive Sponsorship of the WaterFix project could thus transfer responsibility and liability for the WaterFix project design to 5RMK from the Department of Water Resources and Metropolitan Water District.  This kind of risk management is a common arrangement for construction of oil and gas pipelines. Pettiette’s resume lists experience as the Executive Sponsor of two natural gas projects built by Exxon/Mobil.

· ExxonMobil – RFE LNG – Eastern Siberia, Russia
· ExxonMobil – PNG/LNG – Papau New Guinea

The Papau New Guinea project has reportedly had disputes stemming from the way the New Guinea government and Exxon proceeded with the project without first resolving landowner claims.

Pettiette’s resume also lists experience as Executive Sponsor, Program Manager, or VP of Operations of high liability United States government projects, including

· US Department of Energy Hanford Nuclear Reservation Closure
· BP/ARCO McColl Superfund Site Restoration
· US Department of Energy Uranium Mill Tailings Remedial Action Project


Pettiette was President and Responsible Corporate Officer of a Limited Liability Corporation created for the Hanford Nuclear Reservation Closure, Washington Closure Hanford. According to a report, Hanford Cleanup: The First 25 Years, there were problems with the Hanford Nuclear Reservation Closure Process during Pettiette’s tenure. The report states that “[a] routine audit showed that a worker at Hanford’s Environmental Restoration Disposal Facility (ERDF) falsified records related to the compaction of waste within the disposal site.” It refers to a huge fine:

The U.S. Environmental Protection Agency (EPA), which regulated ERDF, issued the U.S. Department of Energy (DOE) a $1.14 million penalty — its largest fine ever at Hanford. The fine included $835,000 for failure to correctly perform compaction testing. The penalty covered both the falsification of testing records and what EPA believed was the improper use of equipment to test compaction. An additional $305,000 in penalties was assessed because of problems monitoring a system to pump collected water from the landfill. EPA said both DOE and its contractor were at fault.

Pettiette’s resume lists experience with several tunneling projects on his resume, including Construction Management for the Pin Lin Highway Tunnel in Taiwan. Wikipedia states about the tunnel:

While excavating the tunnel, engineers encountered difficult geological problems like fractured rock and massive inflows of water, which caused severe delays. One of the three TBMs on the westbound tunnel was buried by a ground collapse. In order to speed up the tunnel boring, an additional working interface in Interchange Station No. 2 (under Ventilation Shaft No. 2) was built. Along the tunnel alignment, there are six major faults, ninety-eight fracture zones, and thirty six high-pressure groundwater sources. Hence, serious tunnel collapses with groundwater flooding took place periodically during tunnel construction. Altogether, 25 lives were lost during 15 years of construction.

There are very real questions about what the reference in Pettiette’s resume to Executive Sponsorship of the WaterFix project means. These questions could only be answered definitively by the contracts with 5RMK. But the contracts have not been disclosed.

Senator Bill Dodd’s SB 204 would require disclosure of information from future WaterFix contracts. At the Senate Natural Resources Committee hearing on the bill, the State Water Contractors opposed language requiring disclosure of the contracts. At the request of the State Water Contractors, Dodd’s SB 204 has been amended to not require disclosure of contracts worth less than $5 million, and further amendments are being negotiated.

Posted by: Deirdre Des Jardins | March 25, 2019

WaterFix:  Tunneling risks and tunnel construction contracts


Seattle, January 2016  A large sinkhole formed near the Big Bertha tunneling machine cutterhead  Source:  Seattle Times

Whether there is one Delta tunnel or two, the construction of a large diameter tunnel in Delta soils consisting of sedimentary layers of peat, sand, silt, and clay is a significant engineering challenge.

The Highway 99 tunnel in Seattle, bored by “Big Bertha,” was constructed in glacial deposits with layers of sand, silt, and clay similar to those in the Sacramento-San Joaquin Delta.  On January 12, 2016, a large sinkhole formed near Big Bertha’s cutterhead, creating major worries about tunneling under Seattle’s Alaskan Way Viaduct (a raised freeway.)  Washington Governor Jay Inslee halted the tunnel boring on January 14, 2016, citing concerns over public safety.

The large sinkhole created by Big Bertha shows the problems that can be created by “loss of ground” when tunneling in sedimentary deposits.  Even without “loss of ground” there can still be significant settlement on the surface.  With Big Bertha, there were extensive precautions to protect public safety.  The Alaskan Way Viaduct was closed for two weeks while Bertha tunneled under the freeway. The freeway was shielded from impacts of settlement by buried concrete pilings installed by the tunnel contractors, and there was extensive grouting to protect against further sinkholes.  There were also a large number of measuring devices installed to detect settlement of the freeway and buildings in Bertha’s path.  The tunneling was completed without further problems.

The current alignment of the WaterFix main tunnels passes under Delta island levees, State Route 4, State Route 12, the BNSF railroad tracks used by Amtrak, the Mokelumne aqueduct, and natural gas and other product and services pipelines.  These are all critical infrastructure in the Delta.  But measures to protect this infrastructure from tunneling impacts were not identified in the WaterFix environmental documents.

Tunneling under Delta levees poses a large economic risk.  The horizontal and vertical stresses on the levees from tunnel boring could cause cracks, especially in levee areas that are prone to slope instability.  Cracks in a levee could result in seepage and failure if they happened during times of high flows in the Delta, or if they happened during times of low flow and were not identified and repaired.  These risks were recently discussed in a news segment on KCRA Channel 3.

WaterFix tunnel alignment was moved east to avoid tunneling under US Army Corps of Engineer’s levees

The US Army Corps of Engineers requires a Section 408 permit for tunneling under state-federal project levees.   The state-federal project levees in the Delta are on the Sacramento River and Andrus Island.  (See map below.)

Project levees

State-Federal Project levees in the Delta.     Source:  Delta Plan

Kern County Water Agency documented that the WaterFix tunnel alignment was moved east to avoid crossing project levees whenever feasible:

As originally configured, the project’s main 40-foot diameter tunnels crossed under numerous rivers, sloughs and other waterways. At each of these locations, additional construction activities would have been necessary to protect the levees that line each of the waterways while the TBMs were being operated, potentially leading to unnecessary project risks […] Mitigation measures employed during the planning and conceptual engineering process attempted to minimize as many of these issues as possible. The current alignment (1) reduces tunneling under most sensitive surface features and private property, instead tunneling under publically [sic] held lands and avoiding crossing U.S. Army Corps of Engineers (USACE) levees wherever feasible; (2) minimizes the number of water features crossing with the tunnel alignment; and (3) reduces the number of tunnel contracts to avoid unnecessary surface disruptions.

(Kern County Water Agency, California WaterFix Overview)

But if no US Army Corps of Engineers permit is required for tunneling under non-project levees, what are the protections?

The Waterfix Final EIR/EIS refers to Settlements induced by tunneling in Soft Ground, by the International Tunneling and Underground Space Association.  With respect to tunneling contracts, it states:

It is common practice in France to include in contractual documents for urban underground works, clauses that specify the maximum admissible ground movements in the area of influence of the works. This aims at assigning responsibilities in the case damages are experienced. As a result, damages related to ground movements falling with the contractual thresholds will be covered by the owner, with the contractor being responsible for damages experienced when the threshold values are exceeded.

The early specifications for the Delta tunnels stated that maximum allowable settlement thresholds should be determined for all structures that needed to be protected and included in the contract documents:

Category: Protection of Adjacent Structures and Property

Approach: A survey of all structures and property along or adjacent to the alignment will need to be performed and any property that needs to be protected will need to be identified.

A program of geotechnical instrumentation and monitoring will need to be developed and included in the plans and specifications in order to help evaluate the settlements induced by the tunneling activities.

Maximum allowable settlement thresholds should be determined and included in the contract documents.

The recommendation for inclusion of maximum settlement thresholds in the contract was not disclosed or carried forward. The WaterFix Final Environmental Impact Report / Environmental Impact Statement only states that a recommendations will be made for “tunneling techniques to avoid excessive settlement.”

the engineer’s recommendations would be documented in a detailed geotechnical report, which will contain site-specific evaluations of the settlement hazard associated with the site-specific soil conditions overlying the tunnel throughout the alignment. The report will also contain recommendations for the type of tunnel boring machine to be used and the tunneling techniques to be applied to avoid excessive settlement for specific critical assets, such as buildings, major roads, natural gas pipelines, electrical and communication lines, aqueducts, bridges, levees, and sensitive satellite dish facilities. (Final EIR/EIS, Chapter 9, p. 9-287.)

There is no indication that criteria for maximum allowable settlement to protect structures on the surface will be determined or included in the contracts. The Final EIR/EIS does not even indicate that levees will be considered to be critical infrastructure that needs to be protected during tunneling:

Given the likely design depth of the tunnel, the amount of settlement beneath developed areas and critical infrastructure (i.e., the village of Hood, SR 4 and SR 12, the EBMUD aqueduct, and a potentially sensitive satellite dish facility) would be minor… Other facilities that may be determined to be critical infrastructure include natural gas pipelines, the proposed EBMUD tunnel, levees, and local electrical distribution and communication lines.  (Chapter 9, p. 9-288.)

As the Newsom administration grapples with the implications of downsizing the twin tunnels project to a still-massive one tunnel project, these critical safety issues must be addressed.  Sweeping them under the rug poses unacceptable risks from a variety of perspectives.

By Deirdre Des Jardins and Tom Williams

Governor Newsom inherited a mess from Governor Brown with the California High Speed Rail project. The first phase of the High Speed Rail project is in mid-construction, the costs have ballooned, and the first phase does not have adequate ridership to be viable on its own. It would have been far less costly to deal with the financial issues during the planning phase of the project.

Meanwhile with Governor Brown’s other mega-project, the twin tunnels, Newsom has announced that he no longer supports the project, but would support a revised, one tunnel project. But while Newsom’s administration is mulling potential changes to the project, the Delta Conveyance Design and Construction Authority is proceeding to preliminary and final design of the Brown Administration’s original twin tunnels project, under a $93 million contract signed with Jacobs Engineering in January. But there are major engineering issues with the project which have not been resolved.

First, the WaterFix proponents have claimed that the Delta tunnels project will provide $5.7 billion in economic benefits from mitigation of impacts of sea level rise. But the ability of the project to continue to provide fresh water has never been evaluated for recent higher projections of sea level rise, as first recommended by the Delta Independent Science Board in 2013. The project’s failure to use best available science on sea level rise was a key issue in identified in the November 2018 Delta Plan consistency review by the Delta Stewardship Council staff. The draft staff determination stated that the project’s sea level rise assumptions were “suitable for a coastal trail.”

Second, because of inadequate geotechnical borings, the design and construction of the 31 miles of Delta main tunnels/tunnel is likely to be subject to significant changes and cost escalation. The graph below is from a presentation by Massoud Manzari, and shows cost overruns vs. number of boreholes. The number of geotechnical boreholes for the Delta tunnels/tunnel project is at the extreme left end of the x axis.

Third, the Delta Protection Commission stated last October that the Department of Water Resources had “failed to grapple with the reality, demonstrated through evidence in the record, that CWF puts the long-term sustainability of small Delta communities in serious jeopardy” and that DWR had also “thoroughly fail[ed] to offer any meaningful mitigation for such impacts.” DWR has yet to address any of the issues raised by the Delta Protection Commission, or in the draft findings by the Delta Stewardship Council staff that the twin tunnels project is inconsistent with the Delta Reform Act and Delta Plan.

Newsom should put a hold on the $93 million preliminary and final design contract with Jacobs Engineering until his administration works out project revisions, and DWR develops a new Conceptual Engineering Report, based on an adequate evaluation of performance under high sea level rise, adequate geotechnical information, consistency with the Delta Reform Act and Delta Plan, and a sound financial plan. To proceed otherwise is folly.

1 Banks Pumping Plant, State Water Project

In his State of the State address on February 18, 2019 Governor Gavin Newsom announced that he did not support a two tunnel WaterFix project:

I do not support the WaterFix as currently configured. Meaning, I do not support the twin tunnels. We can build, however, on the important work that’s already been done. That’s why I do support a single tunnel.

But it is unclear if the California Department of Water Resources will withdraw or amend the August 2015 WaterFix Water Right Change Petition before the State Water Resources Control Board. That application is for a diversion permit for a two tunnel 9,000 cfs diversion project. The Water Board has held hundreds of hours of hearings on the August 2015 petition.

In 2017 and early 2018, DWR was preparing a Supplemental Environmental Impact Report for a single tunnel WaterFix project, but still pursuing the August 2015 petition for a two tunnel WaterFix project. In continuing to pursue the 2015 Water Right Change Petition, DWR’s attorneys made the argument that the Board “must act on the petition before it,” and could not consider approval of a single tunnel project unless DWR and the Bureau of Reclamation amended or withdrew the August 2015 petition for a change in point of diversion.

Multiple protestants submitted motions for continuation of the hearing. The co-Hearing Officers, Tam Doduc and Felicia Marcus, ruled that the hearing could proceed, stating in a February 6, 2018 ruling:

Based on reports that Petitioners are in negotiations that could result in a modification of the proposed WaterFix project to consist of one tunnel rather than two, Antioch, et al., argue that a stay is warranted until Petitioners (1) “fully commit” to either two tunnels or one; and (2) if the latter, fully analyze and model the impacts of the one-tunnel project. NRDC, et al., similarly argue that a project that delays construction of one of the proposed intakes for an unspecified amount of time would necessarily result in distinct impacts compared to the three-intake, two-tunnel project currently proposed by DWR. Neither moving party provides support for its assertion that DWR now “intends” to switch to a one-tunnel project. DWR’s opposition to Antioch, et al.’s motion argues that a continuance is unnecessary because DWR has not altered its water right change petition and DWR continues to seek authorization to divert up to 3,000 cubic feet per second at each of three new points of diversion identified in the petition.

News reports that Petitioners are considering a modification to the project do not constitute good cause to halt all consideration of the change petition currently before us. At this time, it is uncertain whether Petitioners will be modifying the proposed WaterFix project, and if so, how. Petitioners have not communicated any such commitment or intent to the State Water Board. Furthermore, it is speculative to conclude that any potential modifications being discussed necessarily would render moot the continued consideration of Petitioners’ change petition.

We direct Petitioners to update us and the parties if and when they decide to modify the proposed WaterFix project. At that time, it may be necessary for us to solicit input from the parties as to whether such modifications necessitate an amended change petition or new or supplemental CEQA analysis. Until that time, however, we will proceed with consideration of the water right change petition that is now before us.

Numerous protestants then put on expert testimony in Part 2 of the hearing about the possibility of a one tunnel project, and the obsolete and inaccurate project description in the 2015 Change Petition.

Ron Stork, senior policy advocate for Friends of the River, testified that if DWR only built a one tunnel project, the petition for a two tunnel project would be an application for “cold storage” rights which might not be exercised for decades, and granting the petition would be contrary to “the fundamental requirement of California water law that appropriative water rights be perfected with due diligence.”

Ron Stork, Senior Policy Advocate for Friends of the River, testified for Friends of the River and the Sierra Club in Part 2 of the WaterFix Water Right Change Petition Hearing in 2018. This is the section of his written testimony on why pursuing a permit for a two tunnel project, when DWR was only planning to build a single tunnel project, would be contrary to water rights law.

Whither goest the petitioners’ project and are we getting close to a cold storage application?

The petitioners have put a lot of work into bringing this application to this stage. However, since at least the CALFED days where a beneficiaries-pay principle was adopted,the beneficiaries seem to have worked just as hard to put off the hard questions of who will pay what, and will it be enough.

The events of recent months have rocked this project: Westlands pulled away from the table, claiming that the Water Fix costs were too much for the benefits to its growers (Exhibit FOR-79); Reclamation announced various things but appeared that it finally settled on not being willing to contribute federal funds to the project; and non-benefitting CVP project contractors continued their understandable unwillingness to pitch in to ease the financial burdens on the San Luis Unit. Santa Clara appears unwilling to participate in the project as petitioners describe it (Exhibit FOR-81, p. 4). California government officials expressed perhaps willingness to consider a downsized version of the project.

At the same time, the Board maintains it intends to process the application it has in front of it until that application is withdrawn or modified. But part of the Board’s deliberations need to question whether the petitioners are asking for a change petition that they plan to put into cold storage while they wait to sort out what project they can afford and when and under what circumstances can they afford it. This could be decades.

To some extent we are fortunate, the WaterFix draft EIR documents that DWR and the Bureau planned to apply for a “cold storage” permit in the case that the contractors couldn’t afford the project, something that appears to be increasingly relevant today’s news.

In 2011 the Fish Facilities Technical Team recommended consideration of phased construction, to allow 3-15 years operation to test the fish screens. DWR and Reclamationrefused to analyze phased construction, and stated in Appendix 3A of the 2013 Draft EIR that it would be prohibitively expensive:

Although the conclusions from the workshop were not final, the results were clear that a staged approach would be extremely costly compared with an approach by which all approved conveyance facilities were constructed during a single phase. For example, construction of EIR/EIS Alternative 1 (with five intakes and 15,000 cfs diversion capacity) was projected to cost approximately $ 12.9 billion (in 2011 dollars) under a non-phased approach.

Under various phasing or staging approaches, total costs were unknown due to the inability to assign costs to the studies that would be undertaken to assess the success of the initially constructed intakes; but it is clear that the additional construction costs would be enormous. For example, if one tunnel and two intakes were built initially and another tunnel and three intakes were built subsequently, the additional construction costs (on top of the initial $12.9 billion) could range from $9.6 to $17.2 billion (see Workshop Summary: Phased Construction of North Delta Intake Facilities, p. 6). Under another scenario in which the first phase included both tunnels and the second phase still involved three intakes, the additional construction costs could range from $2.5 billion to $4.5 billion. (Ibid.)

These additional costs could well be prohibitive. One of the greatest challenges in making the BDCP work has been to identify scenarios involving new conveyance facilities that can be financed through costs passed on to the ultimate users of water in geographic areas south of the Delta served by the SWP and CVP. If water supplied through new conveyance facilities is not prohibitively expensive, then financing should be available. If water is prohibitively expensive, however, new conveyance will not get built, and the existing environmental problems associated with exclusive reliance on south Delta pumps will persist. The current preferred CEQA alternative, EIR/EIS Alternative 4, already represents a comparatively expensive source of relatively limited amounts of exported water. If the costs of the same facilities were to increase by many billions of dollars, the result could well be abandonment of the BDCP by the water contractors who are proposing to fund the new conveyance. (Exhibit SWRCB-4, Appendix 3A, p. 3A-93-94.)

The Draft EIR also states:

And should the initial approved project be more modest than the current preferred CEQA Alternative, neither DWR nor the CVP and SWP Contractors would be prevented in the future from pursuing an expanded project should the economics of such an undertaking become favorable at some point. The Lead Agencies have determined, however, that it would be financially imprudent to plan from the outset to knowingly embark on a two-phase or two stage process. (Exhibit SWRCB-4, Appendix 3A, p. 3A-93–94.)

Thus there is a real possibility that the Change Petition is an application for “cold storage.”

Proceedings resulting from Bella Vista Water District’s application for their own right to divert water at the Reclamation’s Cow Creek Canal intake developed this concise description of cold storage (Order WR 90-04, p. 13):

The applicants’ apparent intention to acquire a water right permit now to be utilized at some indefinite future time is contrary to the fundamental requirement of California water law that appropriative water rights be perfected with due diligence. One cannot acquire a water right permit to be placed on a shelf in “cold storage” and utilized at some future unspecified time. (California Trout, Inc. v. State Water Resources Control Board (1989) 207 Cal.App.3d 585, 255 Cal.Rptr.184, 204.)

More explanation was developed in a case that I have more than a passing familiarity with, the order revoking Reclamation’s water rights for Auburn dam (Order WR 2009-0011, p. 2):

Our order explained that the requirement that an appropriation ofwater be completed within a reasonable time with the exercise of due diligence is a long-standing principle of California water law designed to protect the public interest by preventing the “cold storage” of water rights. For purposes of discussion, we defined “cold storage” to mean a situation where an appropriation is initiated, so that the water subject to appropriation is not available to other parties who could potentially put it to beneficial use, but the appropriator is not diligently pursuing development of the water supply, so the water remains unused, contrary to the public interest.

In the present proceeding, a granted change petition that is then not used for the foreseeable future tends to focus decision makers on pursuing a perhaps perennially infeasible project. There are real problems in the Delta and its tributaries. They deserve real attention. The charity involved in granting the change petition is not in the public interest at all.

Governor Newsom has announced the appointment of Laurel Firestone, co-founder of the Community Water Center, to the State Water Resources Control Board. Firestone was appointed instead of reappointing the current Water Board Chair, Felicia Marcus. While Firestone is a gifted attorney with deep knowledge of the drinking water crisis in the San Joaquin Valley, her replacement of Marcus on the Board is a major shift in the expertise of State Water Resources Control Board members.

The failure to reappoint Board Chair Felicia Marcus represents a significant loss of institutional knowledge on the Water Board at a critical time in the Board’s development of a once in a generation update to the Bay-Delta Water Quality Control Plan. Marcus presided over the Board during the past six years of development of the update.

Marcus’ experience with the Bay-Delta Water Quality Control Plan dates back to her appointment in 1993 as administrator for EPA Region IX. Marcus was EPA Region IX administrator during the development of the Water Board’s 1995 Bay-Delta Water Quality Control Plan, which is the basis for the current (2006) plan. Marcus had a deep knowledge of the details and implementation of the 1995 and 2006 Water Quality Control Plans, their successes, and their failure to halt the decline of fish populations in the Sacramento San-Joaquin Delta.

Marcus was also co-hearing Officer for the WaterFix Water Right Change Petition Hearing, which is the most significant water rights hearing since the original Central Valley Project and State Water Project permits were granted in 1960 and 1968. Marcus heard hundreds of hours of testimony on the WaterFix project and its potential impacts, and on the decline of pelagic fish populations in the Bay-Delta. Marcus was also considering testimony in that hearing on the historic mandate of the 2009 Delta Reform Act to determine “appropriate Delta flow criteria” to be included in any order approving the WaterFix Change Petition.

According to legislature’s 2009 floor analysis, the Delta Reform Act’s requirement for the Water Board’s to adopt “appropriate Delta flow criteria” “reflect[ed] a landmark concept of the state exercising its public trust authority to ask – FIRST – what the Delta needs, before completing plans for fundamental change to the nature of the Delta.” Contrary to the clear intent of the legislature, the Department of Water Resources has proposed in the Board’s WaterFix hearing that the Board not adopt any “appropriate Delta flow criteria” in the order approving the WaterFix Water Right Change Petition.

The Water Board’s notice for the WaterFix Water Right Change Petition hearing stated that any “appropriate Delta flow criteria” adopted in the hearing would be only “interim” in nature, and that the final flow criteria would be adopted in the pending Bay-Delta Water Quality Control Plan Update. During the entirety of the WaterFix hearing, the Department of Water Resources secretly attempted to negotiate Voluntary Settlement Agreements with senior water rights holders on the Sacramento and San Joaquin River. Governor Brown became involved in negotiating the Voluntary Settlement Agreements in 2018 in a last ditch attempt to resolve major opposition to the WaterFix project by senior water rights holders.

Under Governor Brown’s direction, Karla Nemeth, the Director of the California Department of Water Resources, announced a framework for Voluntary Settlement Agreements at the Water Board’s December 2018 hearing on the Board’s Phase 1 Water Quality Control Plan Update. Nemeth also demanded to take over writing the Board’s Substitute Environmental Document for the WQCP Update to revise it to incorporate the Voluntary Settlement Agreements. This would have essentially usurped the Water Board’s exercise of the adjudicatory and regulatory powers of the state in the field of water resources.

The Board’s Executive Director, Eileen Sobeck, recommended rejection of Nemeth’s demand as contrary to the Board’s regulations, which require the Water Board to be lead agency for the environmental documents for the Water Quality Control Plan Updates. Sobeck recommended that the Water Board instead analyze the Voluntary Settlement Agreements as one of the alternatives in the update. Under Marcus leadership, the Board members approved Sobeck’s recommendation.

Newsom’s cabinet has been continuing negotiations of Voluntary Settlement Agreements with senior water rights holders. The loss of Marcus calls into question whether Newsom’s administration will allow the Water Board to continue its adjudicatory and regulatory processes as an independent agency, or seek to dictate the Board’s decisions as was done under Governor Brown.



1 WaterFix JPA meeting, May 2018

In commenting on Governor Newsom’s announcement of his decision to reduce the size of the WaterFix / twin tunnels project to one tunnel, On the Public Record observed that

Governor Brown went to quite a bit of effort to insulate his projects from the next administration. It is administered by a JPA and they just selected the engineering firm for the design. Governor Newsom may have less power to change the project now than he anticipates. It isn’t only a state project run by his administration any more.

The limitations on the California Department of Water Resources’ power to change the WaterFix project are spelled out in the Delta Conveyance Joint Exercise of Powers Agreement. Clause 2(c) of the JPA agreement requires written acceptance by the Delta Conveyance Design and Construction Authority of any “material changes” to the project:

From time to time, DWR may request the Authority make changes in the Specifications and/or incorporate additional features or elements into the Conveyance Project, and such changes, additional features or elements shall become.a part of the Conveyance Project for purposes of this Agreement upon, but only upon, written acceptance of responsibility therefore by the Authority, which shall not be unreasonably withheld.
(Page 3, underlining added.)

Under the Joint Exercise of Powers Agreement, a “material change” includes any actions which could

  • cumulatively add 6 months to the Conveyance Project schedule previously approved by the Parties
  • impact the water delivery capability, reduce project life, or significantly increase operations and maintenance costs of the Conveyance Project

It is unclear if the Delta Conveyance Joint Exercise of Powers Agreement is consistent with Section 11451 of the California Water Code, which provides that:

The department [of Water Resources] shall have full charge and control of the construction, operation, and maintenance of the project and the collection of all rates, charges, and revenues from it.

“Full charge and control” by DWR of the WaterFix project construction is not currently an issue, because Metropolitan Water District, which has two seats on the five member Delta Conveyance Design and Construction Authority Board, has signaled a willingness to work with Newsom’s administration on revising the project, but it could become an issue in the future if there are disagreements with the JPA on revisions to the project.

Fugro announced on January 23, 2019 that they will be leading a consortium of 5 consultants and 35 specialty subcontractors to provide geotechnical investigations for the WaterFix project. The services will include geological assessment, geophysics, drilling, sampling and laboratory testing. The contract is valued at $75 million.

Dr. Clyde Thomas Williams is a PhD geologist with 30 years of experience with underground projects, including tunnel and pipeline projects around the world, who testified in the State Water Resources Control Board’s hearing on the WaterFix Change Petition.   Dr. Williams testified that a full geotechnical evaluation for the project could result in significant changes to the tunnel and shaft designs and likely significant increases in cost and time. Dr. Williams’ testimony stated in part,

Because the required geotechnical evaluation has not been done, I consider it likely that many aspects of the Project will change. Masoud Manzari did a study of managing geotechnical risks of tunnel projects in soft ground. Manzari’s presentation on the study was titled, Soft Ground Site Investigation & Managing Geotechnical Risks In Tunnelling. The presentation includes the graph on the following page, showing the number of change orders to the projects he studied as a function of the number of boreholes per linear feet of tunnel route. The number of change orders goes up almost exponentially as the number of boreholes decreases. The boreholes for the WaterFix project are on the extreme lower end of the X axis on Manzari’s graph.

In addition, while the leakage analysis done to validate the tunnel lining design (Exhibit DWR-659) looks competent, the analysis methodology is based on a 1994 paper by Fernandez, who derives his estimates from assumptions for rock tunnels. The assumptions almost certainly don’t apply to tunnel linings in soft alluvial deposits beneath the Delta and especially for the connecting tunnel/shaft portions. I would therefore expect that there will need to be significant changes to the tunnel design to ensure that the proposed segmented tunnel lining will not develop leaks under long-term operation. Due to cost escalation issues, an adequate design could require significant changes in the currently proposed tunnel alignment to move the segmented lining to better soils.

Based on my 30 years of experience with underground projects, I think it likely that there will be significant changes to the tunnel and shaft designs and likely significant increases in cost and time. I do not consider a project that is subject to a cost escalation of more than 30% to have a final/biddable/construction design, or even preliminary designs.

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