Written Testimony of Ron Stork on Diligence and the WaterFix Water Right Change Petition Application

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same time, the Board maintains it intends to process the application it has in front of it until that application is withdrawn or modified.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.

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