Posted by: Deirdre Des Jardins | February 21, 2019

WaterFix Water Right Change Petition status uncertain after State of State speech

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.”


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