Posted by: Deirdre Des Jardins | January 8, 2019

True California Water Leadership: Facing Difficult Choices [Part 1]

As Governor Jerry Brown leaves office, there has been a flurry of press releases and media coverage about the Brown administration’s leadership on California water issues. But true leadership in California water is not cheerleading for new water diversion projects. True leadership in California water involves addressing major ongoing conflicts between beneficial uses and the hard choices that need to be made in an age of increasing demands and finite resources. In this context, the true California leaders in the Brown administration have not been Governor Brown, Director Nemeth, or Secretary Laird, but the chairs of the State Water Resources Control Board and Delta Stewardship Council, two regulatory agencies which recently faced these conflicts and took difficult and politically unpopular regulatory actions that needed to be taken.

Delta Reform Act of 2009

The historic context for the recent actions by the State Water Resources Control Board and the Delta Stewardship Council is the Delta Reform Act of 2009. The Delta Reform Act mandated that the State Water Resources Control Board set “appropriate Delta flow criteria” that is protective of public trust resources, and that the criteria should be included in any order approving a change in Point of Diversion for the State Water Project. The floor analysis for the Delta Reform Act stated,

This bill’s “flow criteria” reflect 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…

The requirement for the State Water Resources Control Board to set comprehensive instream flow criteria had been identified as a key issue in a 1978 report by the Governor’s Commission to Review Water Rights Law.  The Commission was created by Governor Jerry Brown during his first term, in the height of the 1976-77 drought. The Commission recommended:

That comprehensive instream flow standards be set on a stream-by stream basis by the State Water Resources Control Board and that the Board comply with these standards in its administrative and adjudicatory decisionmaking; that instream flow standards be expressed in terms of certain quantities or flows of water which are required to be present at certain points along the stream at certain times of the year to protect fishery, wildlife, recreational, aesthetic, scenic and other beneficial instream uses;

It took another three decades for state legislation to be passed that would address the need for comprehensive minimum instream flow standards. The Delta Reform Act of 2009 not only required that the State Water Resources Control Board set “appropriate Delta flow criteria,” it also required that the State Water Resources Control Board send a report to the legislature giving costs for preparing instream flow standards for rivers and streams in the rest of the state.

Unfortunately, the historic mandate for the Water Board to set new instream flow standards was met with stiff resistance from water diverters in the state, including the California Department of Water Resources. The Department of Water Resources proposed that the Board determine no new Delta flow criteria for inclusion in DWR’s permits when approving the WaterFix Change in Point of Diversion. When the Water Board nevertheless persisted in determining new Delta flow criteria, the Department of Water Resources proposed to take over the writing of the Substitute Environmental Document for the Board’s Bay-Delta Water Quality Control Plan Update.   The action was clearly backed by Governor Brown.

An Unconstitutional Power Grab

In a difficult and politically unpopular decision, the Water Board rejected the power grab by the Department of Water Resources and Governor Brown and voted instead to approve the draft Water Quality plan prepared by the Water Board’s staff.  This act was historic, and its significance should be recognized. The Water Board’s decision was the only one that respected the state constitution and the mandate of the legislature in 2009. The Water Board exercises the adjudicatory and regulatory powers of the state over water resources, and should not delegate those powers. The Delta Reform Act also mandated that the Water Board, not the Department of Water Resources, determine appropriate Delta flow criteria.

An Inconvenient Truth

It is an inconvenient truth that the best available science points to the need for increased instream flows in the Sacramento-San Joaquin Delta to protect fish and other public trust resources.   The Scientific Basis Report for the Water Board’s Bay-Delta Water Quality Plan Update clearly documented this science, and was independently peer-reviewed.   It would have been politically expedient for the Water Board chair and members to disregard their own Scientific Basis report and approve the Department of Water Resources’ proposal on 15 year voluntary agreements.   But the voluntary agreements were so weak that the environmental groups that had been participating in the settlement negotiations sent a letter to the Water Board stating that the agreements were insufficient to meet legal requirements or protect fish and wildlife.

It has been recognized for decades that there are no easy solutions in the Delta.  Balancing public trust resources with increasing demands requires difficult and politically unpopular actions.   Facing these choices, rather than kicking the can down the road, is an act of true leadership in California water.

This post was updated on 1/8/2019.

A coalition of environmental groups, including the Environmental Water Caucus, California Water Impact Network, California Sportfishing Alliance, Restore the Delta, Planning and Conservation League and Southern California Watershed Alliance sent an end of year letter to Senators Diane Feinstein and Kamala Harris, and Representative Jared Huffman, calling for funding of environmentally superior alternatives to new dams.  Proposed alternatives included recycling, storm water capture, and groundwater treatment.  The letter referred to the Environmental Water Caucus Report, A Sustainable Water Plan for California.

San Luis Reservoir

California Water Research joined the environmental groups in urging California’s two Senators and Representative Huffman to prioritize the San Luis (B.F. Sisk) Dam seismic remediation over federal funding for new California dams. The groups also called for delay of major multi-year spending commitments until costs for the seismic remediation of San Luis Dam are available. After the Oroville Spillway incident, California Water Research blogged about the long standing issue with geotechnical deficiencies in the San Luis Dam embankments. San Luis Dam is in a very seismically active area. Independently reviewed risk assessments for Reclamation have shown that a large earthquake could lead to crest settlement and overtopping of the dam, which would result in large uncontrolled releases and likely dam failure.

As covered by Ezra Romero for Valley Public Radio in April 2017, failure of San Luis Dam would create an enormous path of destruction, almost 10 miles wide and over 80 miles long, from Los Banos to Antioch in the western Delta. The inundation would immediately hit Santa Nella (population 1,400) and Los Banos (population 37,000). It would flow through western Merced and Stanislaus counties, impacting West Modesto (population 5,600.) In San Joaquin County, the inundation would impact the western part of Manteca (population 72,000), the western part of Stockton (population 298,000.) In Contra Costa County, the inundation would impact Discovery Bay (population 14,000), and Brentwood (population 55,000.) In 2003, the San Joaquin County Office of Emergency Services estimated that 165,000 people were in the inundation path in San Joaquin County alone. Failure of the dam would also cause major disruptions for years in the water supply for the Central Valley Project and State Water Project.

Although seismic remediation of San Luis Dam is scheduled to begin in 2020, no funding has been requested by Reclamation and release of the Environmental Impact Statement has been delayed until July 2019.

Posted by: Deirdre Des Jardins | December 6, 2018

Why more storage won’t help conflicts on the Lower San Joaquin River

1 New Melones Dam, owned by US Bureau of Reclamation Source: Wikipedia

The United States Congress is currently considering an extension of the controversial 2016 Water Infrastructure Improvements for the Nation Act or WIIN Act. Section 1 of the extension would appropriate an additional $134 million per year for the next five years for new dams, for a total of $670 million. One of the main reasons cited for providing additional funding for new dams in California is the State Water Resources Control Board’s proposed updates to the Bay-Delta Water Quality Control Plan. But new dams won’t help reduce the conflicts with the State Water Resources Control Board’s new Lower San Joaquin River flow objectives, because none of the proposed new dams are on the tributaries to the lower San Joaquin River which are affected by the proposed LSJR flow objectives. (The proposed emergency spillway modifications at New Exchequer would increase storage slightly, but at the cost of affecting the safety of the dam.)

According to the Water Board’s Technical Report for the Scientific Basis for the San Joaquin River flow objectives, three huge new dams on the tributaries to the Lower San Joaquin River were built in the late 1960s and early 1970s. New Exchequer Dam was completed on the Merced River in 1967, New Don Pedro on the Tuolumne River in 1970, and New Melones on the Stanislaus River in 1978.

With New Exchequer Dam, the dams on the Merced River can store 120% of the median annual flow of the Merced, or the entire flow in 65% of years. With New Don Pedro Dam, the dams on the Tuolumne River can store 170% of the median annual flow of the Tuolumne, or the entire flow in 80% of years. and with New Melones Dam, the dams on the Stanislaus River can store 260% of the the median annual flow of the Stanislaus, or the entire flow in 95% of years. So the conflicts on the Lower San Joaquin River do not stem from inadequate reservoir storage, but rather from the ability to divert and store the entire annual flows of the three tributaries to the Lower San Joaquin in most years.

Major dams on Lower San Joaquin River Tributaries


Stanislaus River

Tuolumne River

Merced River

Median Annual

Unimpaired Flow


1.08 MAF

1.72 MAF

0.85 MAF

Total Reservoir Storage

2.85 MAF

2.94 MAF

1.04 MAF

Reservoir Storage as % of median flow




% of Years Unimpaired Flow < Total Reservoir Storage




Major Dams

New Melones

(1978, 2.4 MAF)

Tulloch, Beardsley, Donnells

(1957-8, 203 TAF)

New Spicer Meadows

(1988, 189 TAF)

New Don Pedro

(1970, 2.03 MAF)

Hetch Hetchy

(1923, 360 TAF)

Cherry Valley

(1956, 273 TAF)

New Exchequer

(1967, 1.02 MAF)


The Water Board’s permits for New Exchequer, New Don Pedro, and New Melones dams were issued over 40 years ago. The conflicts between human uses of water and ecosystem needs have grown enormously in the past four decades. Diversion data from 1984 to 2009 shows that the some of the highest diversions, as a percent of flow, occur during the critical February to June period when San Joaquin Chinook salmon are rearing and migrating. The Water Board looks at ecosystem flows as a percentage of estimated unimpaired flows on the river. From February to June, 79% of the unimpaired flow Tuolumne River has been diverted, 74% of the Merced River, and 60% of the Stanislaus River.


  Stanislaus River Tuolumne River Merced River
Median Annual % of Unimpaired Flow 58% 40% 46%
Median Feb-Jun % of Unimpaired Flow 40% 21% 26%

The Bay Institute produced these graphs of flows on the Lower San Joaquin River and its tributaries from 1995 to 2016. Except for the extremely wet year of 2017, the Lower San Joaquin and its tributaries have been almost dried up from February to June since 2012.   This is the critical time for migration and rearing of a number of fish, including Chinook salmon.



Palo Alto

Downtown Palo Alto

At a Special Meeting on Wednesday, December 5, 2018 the Board of Directors of the Santa Clara Valley Water District will consider a letter from the attorney for the City of Palo Alto about the State Water Project tax that SCVWD imposes on parcels in the District. The letter states in part,

The purpose of this letter is to reassert the City’s position that the Santa Clara Valley Water District’s longstanding practice of taxing property owners in Palo Alto and other parts of Santa Clara County who do not receive water from the SWP to pay for the entirety of the District’s SWP contractual obligations, rather than attempting to fund those costs from rate payers who use SWP water, is clearly inequitable and legally tenuous.

And concludes

Local water districts that undertake SWP funding in the same manner as the District are susceptible to legal challenge by taxpayers, advocacy groups, and public agencies. The City is aware of at least one citizen-initiated effort in another part of the state to redress such unfair taxation, and the impetus to challenge these practices will become greater if SWP costs increase substantially as anticipated.

Under Proposition 26, there is a mandatory nexus between fees and cost of service.  For water districts such as Palo Alto and Purissima Hills that rely on water from Hetch-Hetchy, the connection between Santa Clara Valley Water District’s SWP parcel tax and water supply costs is tenuous at best. The SCVWD staff are recommending that the Board not implement the California WaterFix portion of the State Water Project tax until DWR’s CWF bond validation action is successful. The staff powerpoint indicates that the District is also planning to establish grants to water agencies that serve communities in which 85% of water supply is not District-managed up to amount of the State Water Project tax paid.

The State Water Resources Control Board has drafted a proposed update to the Bay-Delta Water Quality control plan that would require significantly increased flows on the San Joaquin River and its tributaries. The plan has been fiercely opposed by water rights holders on the San Joaquin River.

Phase 1 update

1 Phase 1 WQCP update would mandate increased minimum instream flows on San Joaquin River and tributaries

On Tuesday, November 6, 2018, just after Gavin Newsom was elected Governor, Governor Brown and Governor-elect Newsom sent a request to the State Water Resources Control Board to delay voting on the Phase 1 Water Quality Control Plan update until December 12, 2018. They stated that

A short extension will allow these negotiations to progress and lead to a faster, more durable outcome.

Led by Board Chair Felicia Marcus, the Board voted 3-0 to approve the request. In deciding to support the Governor and Governor-elect’s requests to delay vote, Chair Felicia Marcus stated,

I call on the better angels of everyone’s nature. If it’s more of the same we will have wasted 30 days of our’s, your’s and the governor’s time.

Board members Steven Moore and Tam Doduc abstained from the vote. Moore is retiring from the Board to take a position with Ross Sanitary District, starting November 13, 2018. Moore and Board member Tam Doduc had expressed support for taking action at today’s meeting.

The Natural Resources Defense Counsel and other environmental groups are concerned that Governor Brown is working with the Department of Water Resources and the California Department of Fish and Wildlife to weaken the proposed flow requirements. Governor Brown’s administration is seeking to modify the Water Board staff’s plan with a “functionally equivalent” plan, based on voluntary settlement agreements and “functional flows.” The agreements would require modification of the Board’s draft order. With Moore’s retirement next week, the Board may lose the votes necessary to approve the currently proposed Phase 1 update.

In today’s hearing, Board Chair Felicia Marcus mentioned the history of gubernatorial interference with Water Quality Control Plans. The last California governor to interfere with a Bay-Delta Water Quality Control Plan update was Governor Pete Wilson in 1993, with Decision 1630. The Wilson administration’s interference began with a similar request for an extension of one month. Decision 1630 states:

Director David Kennedy of the Department of Water Resources has requested an extension of at least one month, and has stated his opinion that the additional time would not foreclose any options for further regulatory action.

But Governor Wilson then directed the Water Board to abandon Decision 1630.

Water Rights Attorney Marc Del Piero was the Vice-Chair of the State Water Resources Control Board from 1992-1999. In April of this year Del Piero testified in the Board’s WaterFix Water Right Change Petition hearing about the consequences of Governor Wilson’s interference with Decision 1630:

In 1992 and 1993, while I was serving on the SWRCB, we came very close to adopting a Water Rights Decision (Draft Decision 1630) that would have addressed many if not all of those desired outcomes sought for the Delta today. I supported that draft and its policies. However, the then-administration intervened to keep the Board majority from adopting the draft decision, which subsequently led to adoption of the Bay Delta Accord in 1994, followed by the establishment of the CalFED process, and the DWR-initiated “Monterey Amendments” to the State Water Project (“SWP”) contracts. These band-aid, compromise actions clearly failed to keep the promise of “balance” and to protect the public trust resources in the Delta. Further, the condition of the Delta, its eco-systems, its public trust and agricultural resources, and its endangered species and fisheries became even worse by the actions of a subsequent administration that allowed DWR to increase real exports from the Delta in 2001 that pushed the ecosystem into near collapse by 2007.

I participated in most of the evidentiary hearings leading up to the adoption of SWRCB Decision 1641 prior to the end of my tenure on the SWRCB in 1999. D-1641, which was intended to effectively implement the rushed Water Quality Plan objectives of 1995, was and is a failure. Its “teeth” were knocked out prior to its subsequent adoption in 2000. It has failed to provide adequate Delta outflow to San Francisco Bay. It has failed to protect the Delta public trust resources and protected fisheries. It failed to obligate major rights holders to actually meet or exceed all of the water quality standards that the Board adopted to guarantee the sustained health of the estuary and its public trust resources. It has failed to guarantee equivalency for the protection of environmental resources as against the needs of export contractors. Moreover, the Petitioners have effectively ignored D-1641 when strict compliance with its mandates became inconvenient due to export demands on the projects.

Petitioners’ assurances to the SWRCB that they will comply with water quality standards in the revised 2006 Water Quality Plan update if their dual tunnels are approved lack sincerity, intellectual honesty, and a successful past track record.

The Department of Water Resources objected unsuccessfully to Del Piero’s testimony and sought to have much of it stricken from the record.

The Delta Stewardship Council is considering nine appeals of the certification by the Department of Water Resources that the WaterFix project is consistent with the Delta Plan.  In addition to appeals filed by the Delta Counties, one of the appeals was by North Delta Cares, a small community organization that represents residents and businesses in the Northern part of the Delta, including the small North Delta legacy towns.

North Delta Cares’s appeal cited concerns about release of hazardous materials from construction of the Delta tunnels:

It is North Delta Cares’ concern that although CEQA concludes that there are no sensitive receptors exposed to hazardous materials, substances, or waste as a result of construction of the water conveyance facilities under the proposed project and therefore, there would be no impact, the Legacy Town of Hood and its inhabitants […] is ¼ mile from the construction of Intake 3 and ½ mile from construction of Intake 5. These intakes sandwich this Legacy Town and the construction impacts create a hazardous situation for the people and animals living there.

Hood intake

North Delta Cares cited the WaterFix Final EIR/EIS, which stated:

Potential hazards include the routine use of hazardous materials (as defined by Title 22 CCR Division 4.5); natural gas accumulation in water conveyance tunnels; the inadvertent release of existing contaminants in soil, sediment, and groundwater, or release of hazardous materials from existing infrastructure; disturbance of electrical transmission lines; and hazardous constituents present in RTM. These impacts are considered significant because the potential exists for substantial hazard to the public or environment to occur related to conveyance facility construction. (FEIR/S, Pg. 24-5, L 28-39)

In response, the Department of Water Resources claimed that there were no sensitive receptors to hazardous materials in the town of Hood, because there were no schools, hospitals or parks in the town.

For the purposes of the Final EIR/EIS analysis, schools, hospitals, and parks are considered sensitive receptors… There are no schools, parks or hospitals located within 0.25 mile of the water conveyance facilities alignment. Therefore, no sensitive receptors would be exposed to hazardous materials, substances, or waste as a result of construction of the water conveyance facilities under Alternative 4A. (Id., p. 24-245)


Hood, CA           Source:

In closing arguments in the Delta Stewardship Council hearing, Barbara Daly stated for North Delta Cares:

This is an example of DWR’s attempts to define away the impacts on North Delta communities in the WaterFix Final EIR/EIS.   But in the Delta Plan Amendments PEIR, Impact 5.4-4, the Delta Stewardship Council defined sensitive receptors to include rural residences.   This kind of parsing of impacts on public health is unacceptable.

Gas Wells

There are serious potential hazards in the vicinity of North Delta towns. One is abandoned gas wells. As documented in California Water Research’s blog post, WaterFix tunnel construction: gas wells, in 2010, outside reviewers of the Delta tunnel design had recommended  that DWR locate all abandoned gas wells in the tunnel alignment and avoid tunneling over them.   As of last Spring, DWR and MWD had not done so.  North Delta Cares sent a letter to Metropolitan Water District’s Board on July 9, 2018, which mentioned the gas well hazards and MWD’s disastrous tunnel construction history:

Unfortunately, gas well and tunneling accidents are not new to projects under construction by MWD. The largest tunneling accident in California history occurred in 1971 during MWD’s boring of the 5.5 mile-long, 170 feet deep, underground Sylmar Tunnel to Castaic Reservoir with a tunneling machine killing 17 people in a gassy tunnel explosion. The Sylmar Tunnel was known to go through an area of oil and gas wells. This was the longest trial in U.S. history and ultimately resulted in litigation amounting to $9.3 million in civil judgments.

The only mitigation that DWR and MWD are proposing in the Conceptual Engineering Report is to determine in the future how close they can safely pass to gas wells during tunneling. This is unacceptable and extremely irresponsible in the light of the serious potential for an accident involving gas in tunneling operations.

DWR sought to exclude both North Delta Care’s letter and a newspaper article on the Sylmar Tunnel Disaster from the Delta Stewardship Council’s consideration of North Delta Care’s appeal, although the article on the Sylmar Tunnel Disaster had been submitted as evidence in the State Water Board’s hearing on the WaterFix Change Petition.

Hexavalent Chromium

Chromium 6

Another serious potential hazard at the North Delta intake sites is heavy metals in the sediments. Potentially hazardous levels of chromium were found in environmental screening tests of geotechnical borings in 2010 and 2011. Hexavalent chromium is known to be a potent carcinogen, As testified by California Water Research in the Delta Stewardship Council’s hearing on October 25, the results of DWR’s environmental screening tests were in a 2011 internal geotechnical data report, which was referenced in the WaterFix Environmental Impact Reports (EIR) / Environmental Impact Statements (EIS) but never publicly distributed.

Site Boring number Depth (feet) Chromium (mg/kg)
Intake 1 DCR1-DH-010-43 43 56.20
  DCRA-DH-001-01-158 158 57.00
Intake 2 DCRA-DH-002-01-155 155 91.20
Intake 3 DCR3-DH-005-01 1 56.60
  DCR3-DH-005-01 1 56.60
Intake 4 DCR4-DH-008-01 (no depth) 51.10

Chapter 24 of the EIR/EIS on Hazards and Hazardous Materials implied that DWR had no evidence of any hazardous materials in the WaterFix footprint. DWR sought to exclude the table above, summarizing the information in the internal geotechnical report, from the Delta Stewardship Council’s consideration of North Delta Cares’ appeal.

This post was updated on November 2, 2018 with a better closeup of the plan for the intake next to Hood, CA, and a better picture of the town.

Posted by: Deirdre Des Jardins | October 29, 2018

Prop 3: Can California Afford to End Beneficiary Pays?

Local Costs for Water Supply are $27 billion a year

The Public Policy Institute of California estimated that the California water sector spent an average of $27 billion a year from 2008-2011 on water supply and wastewater treatment, about 84% of which was spent locally.

Water Sector Spending, 2008-2011 Source: 2017 CVFPP Highlights

Natural Resources general fund expenditures are $3.6 billion a year

In 2018-2019, general fund expenditures for Natural Resources total $3.6 billion. Due to ballooning Natural Resources bond debt, debt service is about 33% of general fund expenditures in the Natural Resources area in the 2018-2019 budget.

From 2000-2009, voters approved $19.6 billion in bonds primarily for water supply, water quality, and flood protection – almost quadruple the amount issued from 1990-1999.

If Proposition 3 is passed, Natural Resources bond debt authorized since 2000 will reach $40 billion, more than Transportation bonds, which total $29.9 billion.

The Treasurer’s Debt Affordability reports show that since 2000, California’s general obligation bond debt has quintupled — going from $17.9 billion in 2000 to $89.6 billion in 2018.

Debt service went from 3.0% of general fund expenditures in 2002-2003 to 6.4% in 2017-2018.  The increase resulted in a shift of $4.3 billion in 2017-18 general fund expenditures to debt service from 2002-2003.

Proposition 3 will require $433 million a year in debt service, and $580 million at the peak. Proposition 68 will require $200 million a year in debt service. The funds will likely come out of other areas of the budget.

California’s final 2018-2019 budget agreement provides an example of potential impacts of the shift of $633 million in general fund revenue which would be needed to pay for Proposition 68 and Meral’s proposed bond. Over the amount proposed in the May Revision, the Los Angeles Times reported that California counties got an increase of $250 million for homeless services, and state health, emergency and social service programs got a $100 million increase. The University of California system got an increase of $100 million, and California State University system got an increase of $200 million. This was a total of $650 million.


The Delta Stewardship Council held a hearing from Wednesday, October 24 through Friday 26, 2018 on nine appeals of the certification by the Department of Water Resources that the WaterFix project is consistent with the Delta Stewardship Council’s Delta Plan. The WaterFix project has been strongly opposed by Delta local government agencies. All of the Delta counties have filed appeals, including Sacramento County, and San Joaquin, Yolo, Contra Costa, and Solano Counties, which filed a joint appeal with Local Agencies of the North Delta. The City of Stockton also filed an appeal. In a dramatic development, the Delta Protection Commission sent a strongly worded recommendations to the Delta Stewardship Council on Friday, October 19, stating that the WaterFix project is inconsistent with the Delta Reform Act and the Delta Plan, and recommending that the project be remanded to DWR.   Delta Protection Commission members testified in the hearing.

The Delta Protection Commission’s recommendations carry some weight, because under the Water Code, the Delta Protection Commission officially advises the Delta Stewardship Council on significant projects within the scope of the Delta Plan. The DPC recommendations are 19 pages long, so this post will quote some of the key findings.

In the introduction, the Delta Protection Commission’s written recommendations state:

As discussed below, the proposed CWF project is inconsistent with the Delta Plan policies and recommendations regarding “Delta as Place”. If carried out as proposed, CWF will irrevocably alter the rural character of the Delta, its economic pillars (agriculture and recreation), and its cultural heritage. We believe this represents a significant adverse impact on the achievement of one or both of the coequal goals, since the coequal goals must be achieved in a manner that protects and enhances the unique cultural, recreational, natural resource and agricultural values of the Delta as an evolving place. (p. 2.)

Delta Plan Policy P2, Respect Local Land Use When Siting Water or Flood Facilities or Restoration Habitats, requires that:

Water management facilities, ecosystem restoration, and flood management infrastructure must be sited to avoid or reduce conflicts with existing uses or those uses described or depicted in city and county general plans for their jurisdictions or spheres of influence when feasible, considering comments from local agencies and the Delta Protection Commission. (underlining added.)

The Delta Protection Commission’s recommendations state:

Our review of the record suggests that CWF does not “avoid or reduce conflicts . . . when feasible”, as required by DP P2. DWR’s supporting findings identify numerous impacts to Delta communities associated with the CWF project. Included among these impacts are disclosures of the impacts on community character of the CWF project’s construction activities, including declining property values, blight and abandonment. It is not hyperbole to suggest that the CWF project presents an existential crisis for the small Delta communities that would be most affected by the protracted, intensive construction period, the permanent infrastructure, and the radical – not evolutionary – effects on the Delta economic drivers of agriculture, recreation, and emerging heritage tourism. DWR has 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; it also thoroughly fails to offer any meaningful mitigation for such impacts. (p. 6, underlining added)

Delta Plan Mitigation Measure 18-2 requires specific actions by lead agencies to mitigate impacts of projects on recreational facilities. The Delta Protection Commission’s recommendations state:

Impacts to Recreation: Recreation is second only to agriculture in contributing to the Delta region economy. According to the ESP, visitors to the Delta region generated a total of 12 million visitor days of use annually in 2010 with a direct economic impact of more than $250 million in spending, with most of this visitation in interior areas of the Delta that will be largely impacted by CWF. (p. 8.)


No mitigation has been proposed for the substantial “temporary” impacts to recreation in the Delta by the project proponents, other than creation of site-specific “construction traffic management plans” which are deferred to the future. There is no analysis in the record of temporary impacts, although  FEIR/EIS Chapter 15 defines “temporary” as longer than 2 years, and construction could take from 5-10 years depending on location and facility. Regardless, this lack of analysis and associated mitigation or project modifications do not meet the standard set forth by the Council in the Delta Plan MM 18-2. (p. 10.)

Delta Plan Mitigation Measure 7-1 requires specific actions by lead agencies to mitigate permanent impacts to agricultural lands. The Delta Protection Commission’s recommendations state:

Impacts to Agriculture: Agriculture is the dominant land use and economic driver in the rural Delta region, with total crop value of approximately $919 million in 2016. Combined with approximately $82 million in animal products value, the total $1 billion Delta agricultural economy has an economic impact of 12,407 jobs, $999 million in value added and $1.81 billion in output in the five Delta counties.  CWF mitigation does not provide equally or more effective protection than Delta Plan EIR mitigations.

The Delta Plan EIR Mitigation Measure (MM) 7-1 states that a project that will result in permanent  conversion of Farmland should preserve lands in perpetuity with a target ratio of 1:1. (p. 12.)


Instead, DWR proposes that the Council accept an alternative type of mitigation (MM AG-1c)64 in which no mitigation ratios and no analysis is included. Within the analysis in the Final EIR/EIS of the short term and long term impacts to agriculture, DWR did consider a conventional farmland mitigation program with 1:1 ratios, consistent with the Delta Plan mitigations measures, yet dismissed it with the statement that it “may not be feasible because of cost or availability of land.” This type of dismissive conclusion is unacceptable and shows little regard for either the Delta Plan or the Delta agricultural community. (p. 13.)

.The Delta Protection Commission recommends that the Council remand the project to DWR, stating:

To inform your decision, we have provided numerous instances where the record shows the project as currently proposed is not consistent with the Delta Plan charge to protect the Delta as a unique, evolving Place and would irrevocably alter the defining characteristics of the Delta, rendering the Delta as Place policies meaningless and the recommendations pointless. We strongly recommend, pursuant to PRC section 29773, that the Council remand the project until the proponents can demonstrate that these Delta as Place inconsistencies have been greatly reduced or eliminated. DWR will be able to take the opportunity afforded by a remand to meaningfully engage with local communities to determine ways in which it might best support Delta as Place policies. (p. 17.)

The Delta Protection Commission’s recommendations and testimony appear to greatly strengthen the appeals filed by the Delta counties and the City of Stockton.

This post was updated on November 1, 2018 to reference the Delta Protection Commission’s testimony at the Delta Stewardship Council’s hearing on the WaterFix Consistency Determination.

It is not generally known that the State Water Project Water Supply Contracts explicitly bar recovery of damages or general liability for operations of the State Water Project. For example, Metropolitan Water District’s contract states the following:

13.  Responsibilities for Delivery and Distribution of Water.

(b) Neither the District nor any of its officers, agents, or employees shall be liable for the control, carriage, handling, use, disposal, or distribution of project water before such water has passed the delivery structures established in accordance with Article 10; nor for claim of damage of any nature whatsoever, including but not limited to property damage, personal injury or death, arising out of or connected with the control, carriage, handling, use, disposal, or distribution of such water before it has passed said delivery structures.

The annual financial statement published by the Department of Water Resources claims, erroneously, that the State Water Project is self-insured for general liability. The 2017 State Water Resources Development System financial statement states:

11. Self-Insurance

The System is self-insured for all completed facilities of the SWP. The System is also self-insured for workers’ compensation, general liability and other risks. All workers’ compensation claims and other losses are on a pay-as-you-go basis. The Water Supply Contracts provide for recovery of such losses from the Water Contractors. Additionally, the CVP act and the related bond resolutions authorize the issuance of additional bonds, payable from available revenues or federal reimbursements under the National Disaster Act, for the purpose of providing funds for emergency repairs to power projects or water system projects necessitated by natural disasters, provided that certain conditions are met.

But clearly given the language in the State Water Project contracts, the State Water Resources Developments system is likely NOT self-insured for general liability. For this reason, taxpayers could have to pay damages from the Oroville spillway incident, awarded by the courts to third parties. In 2017, the state received claims from the Oroville spillway incident totaling $1.1 billion .

1 Oroville spillway emergency evacuees Source: Beale Airforce Base

The State Water Project contractors are also seeking $200 million in general obligation bond funds to pay the costs of the reconstruction of the Oroville spillway, although the 1960 Burns-Porter Act pledged that repair costs would be paid from revenues from sale of water and power. Water Code section 12937, subdivision (b), states (underlining added):

All revenues derived from the sale, delivery or use of water or power, and all other income or revenue, derived by the State, from the State Water Resources Development System shall be deposited in a special account or accounts in the California Water Resources Development Bond Fund and shall be accounted for and used annually only for the following purposes and in the following order, to wit:

1. The payment of the reasonable costs of the annual maintenance and operation of the State Water Resources Development System and the replacement of any parts thereof.

2. The annual payment of the principal of and interest on the bonds issued pursuant to this chapter.

3. Transfer to the California Water Fund as reimbursement for funds utilized from said fund for construction of the State Water Resources Development System.

4. Any surplus revenues in each year not required for the purpose specified in the foregoing subparagraphs (1), (2) and (3) of this subdivision (b) of Section 12937 and not required to be transferred to the General Fund pursuant to subparagraph (a) of this Section 12937, shall, during the time any of the bonds authorized herein are outstanding, be deposited in a special account in the California Water Resources Development Bond Fund and are hereby appropriated for use and shall be available for expenditure by the department for acquisition and construction of the State Water Resources Development System as described in Section 12931 hereof.

In spite of this provision, it is currently unclear if the State Water Project contractors will end up paying any of the costs of neglect and deferred maintenance of the Oroville dam spillway.

Posted by: Deirdre Des Jardins | May 21, 2018

WaterFix: tunneling under levees

Construction of two 40′ diameter tunnels in the deep, soft alluvial soils in the Sacramento San-Joaquin Delta is a significant engineering challenge, particularly since it involves tunnel boring under Delta levees. In 2015, Central Delta Water Agency expressed major concerns that the WaterFix Partially Recirculated EIR/EIS failed to “adequately investigate, discuss or analyze, much less mitigate” the risks to Delta levees from tunnel boring. In 2018, San Joaquin County and the San Joaquin County Flood Control agency put on testimony in the State Water Resources Control Board’s WaterFix Change Petition Hearing that the preliminary geotechnical engineering for the Delta tunnels was inadequate and risks to Delta levees had not been addressed. This blog post examines those concerns.

Chapter 9 of the WaterFix Final EIR/EIS includes a discussion of the risks of settlement from tunnel boring. This is the section:

Impact GEO-3: Loss of Property, Personal Injury, or Death from Ground Settlement during Construction of Water Conveyance Features

Two types of ground settlement could be induced during tunneling operations: large settlement and systematic settlement. Large settlement occurs primarily as a result of over-excavation by the tunneling shield. The over-excavation is caused by failure of the tunnel boring machine to control unexpected or adverse ground conditions (for example, running, raveling, squeezing, and flowing ground) or operator error. Large settlement can lead to the creation of voids and/or sinkholes above the tunnel. In extreme circumstances, this settlement can affect the ground surface, potentially causing loss of property or personal injury above the tunneling operation.

Systematic settlement usually results from ground movements that occur before tunnel supports can exit the shield and the tunnel to make full contact with the ground. Soil with higher silt and clay content tend to experience less settlement than sandy soil. (p. 9-195)

The diagram below illustrates the surface settlement trough from tunnel boring. The WaterFix Final EIR/EIS estimates that the maximum systematic settlement could be up to 2.9 inches, with a settlement trough width of 328 to 525 feet.

The WaterFix Final EIR/EIS does not contain any analysis of the effects of settlement from tunnel boring on the Delta levees, implying that it will be done in the future:

the following federal design manuals and professional society and geotechnical literature would be used to predict the maximum amount of settlement that could occur for site-specific conditions, to identify the maximum allowable settlement for individual critical assets, and to develop recommendations for tunneling to avoid excessive settlement, all to minimize the likelihood of loss of property or personal injury from ground settlement above the tunneling operation during construction. (p. 9-288.)

But the WaterFix Final EIR/EIS does not even designate the Delta levees as “critical infrastructure,” stating only that the critical infrastructure will be determined in the future:

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. (p. 9-288.)

It is unclear why DWR did not designate the Delta levees as critical infrastructure during the 10 years of preliminary engineering for the WaterFix. The WaterFix Final EIR/EIS does discuss the risks of large ground settlements when tunneling, stating:

Operator errors or highly unfavorable/unexpected ground conditions could result in larger settlement. Large ground settlements caused by tunnel construction are almost always the result of using inappropriate tunneling equipment (incompatible with the ground conditions), improperly operating the machine, or encountering sudden or unexpected changes in ground conditions. (p. 9-288, emphasis added.)

Two civil engineers testified in Part 2 of the Water Board’s WaterFix hearing that highly unfavorable and variable ground conditions can be expected in the Delta, and that there are significant risks from tunnel boring. San Joaquin County and the San Joaquin County Flood Control and Water Conservation District put on testimony by Josef Tootle, the Principal Geotechnical Engineer with ENGEO Incorporated, who has 20 years of experience with geotechnical design for projects in the Delta. Tootle testified that recent geotechnical exploration in the Delta by the University of Texas showed that

… the sediments underlying the Delta were both softer and more variable than the engineering consultant had expected. The sediments were in fact so variable that the University of Texas had difficulty interpreting the results at depths greater than 100 feet. (p. 9.)

Tootles’ testimony was corroborated by Chris Neudeck, the District engineer and Local Agency Representative for 26 of the Reclamation Districts in the Delta. Neudeck’s testimony related experience with two “near-misses” in tunnel boring in the Delta. The first was in boring of a 50 inch diameter sewer line for the City of Stockton Municipal Utilities Department beneath Shima Tract’s levee, and the second in boring a 72 inch diameter interconnect pipeline to Contra Costa Water District’s second Delta intake on Victoria Canal. While the WaterFix tunnels are much deeper, they are also much larger.

Tootle also testified that the preliminary engineering for the WaterFix project is inadequate because the geotechnical investigations to date do not meet accepted standards for preliminary engineering:

…the geotechnical site investigations to date do not meet the accepted standards for a project of any size, let alone a major project in the Delta. A registered civil engineer in the State of California who proceeded to detailed design using only the presently available data would likely be judged to not be acting in accordance with the generally accepted standard of care. And, without more detailed designs, the Petitioners’ assurances on multiple issues appear to be meaningless (p. 8.)

Tootle concluded that there is significant risk in tunneling under Delta levees, stating:

there can be little assurance (and Petitioners have provided none) that the ambitious tunneling activities at critical locations, such as under levees, will not result in serious injury to the integrity of the Delta’s complex levee system and other infrastructure essential to public safety and economic productivity in Delta communities (p. 7.)

Tom Williams, a PhD geologist who has consulted on tunnel and pipeline projects all over the world, raised similar concerns in testimony in Part 1 of the WaterFix hearing.about the inadequacy of DWR’s geotechnical site investigations, and the deferment of mitigations for risk to levees and other critical structures.

DWR’s 2010 internal, unreleased preliminary engineering report shows that independent reviewers of the tunnel design recommended that DWR move the tunnel alignment to the east to provide better ground conditions for constructing the tunnel shafts and boring the tunnels. The document shows that the recommendation was rejected because of cost considerations:

Relocating the tunnel to the eastern side of the Delta would put it outside the Conveyance Planning Area and would in all probability cause a delay in the environmental process. An eastern alignment for the tunnel would also be much longer and would cost between $1 billion and $1.5 billion more than the current alignment.

The document also states:

Not enough is known about the geology in the eastern alignment to say that it much better than the current alignment.

The 2010 recommendations of the independent reviewers to move the tunnel alignment to the east were not disclosed by DWR.

DWR’s construction schedule for the WaterFix, included in DWR’s Joint Exercise of Powers Agreement, may increase risks to the Delta levees from tunnel boring. The construction schedule assumes continuous boring of the Delta tunnels, with no breaks for winter months or for times of high water. The continuous construction schedule saves time and money by avoiding winter work stoppages, but at the cost of greatly increased impacts should the integrity of the Delta levees be compromised.

1 Tyler Island repairs during high water in January 2017

The WaterFix Final Draft Conceptual Engineering Report has a safety plan, but it just requires construction of ring levees around the tunnel shafts to protect the tunnels from flooding. There is no safety plan addressing risks to people on Delta islands in the event of a levee breach during tunnel construction.

The WaterFix Final EIR/EIS CEQA conclusion only addresses hazards to WaterFix construction workers and project structures, stating:

DWR has made conformance to geotechnical design recommendations and monitoring an environmental commitment (see Appendix 3B, Environmental Commitments, AMMs, and CMs). Hazards to workers and project structures would be controlled at safe levels and there would be no increased likelihood of loss of property, personal injury or death due to construction of Alternative 4A. The impact would be less than significant. No mitigation is required (p. 9-289.)

Chris Neudeck testified in the Water Board’s WaterFix hearing that the Department of Water Resources had never contacted the Delta Reclamation Districts he represents about monitoring of settlement of the levees during tunneling boring or mitigation of risks.

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