Posted by: Deirdre Des Jardins | February 13, 2019

WaterFix: Joint Powers Agreement requires written acceptance by JPA of changes to the project

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.


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