In 2015, the Department of Water Resources filed a petition for Change in Point of Diversion with the State Water Resources Control Board for the WaterFix / twin tunnels project. Environmental, fishing, and Delta groups strongly protested the Water Board proceeding with the hearing before the Bay-Delta Water Quality Control Plan Update.
But the Hearing Officers, Felicia Marcus and Tam Doduc, ruled against a delay of the hearing. The Hearing Officers’ ruling stated in part:
We do not agree with some parties’ assertion that the State Water Board cannot proceed with a water right decision prior to updating the Bay-Delta Plan. The Sacramento-San Joaquin Delta Reform Act of 2009 (Delta Reform Act) establishes additional requirements related to the WaterFix that are distinct and separate from the Bay-Delta Plan. The Delta Reform Act requires that any order approving the water right change petition must include “appropriate Delta flow criteria.” Those flow criteria must be informed by flow criteria to protect the Delta ecosystem, which the State Water Board developed in 2010.
We do not interpret “appropriate Delta flow criteria” to mean the same thing as either existing or revised water quality objectives. Determination of appropriate flow criteria for purposes of this proceeding will entail a balancing of the need for flows to protect water quality in the Bay-Delta and the need for water to meet the demands of the State Water Project (SWP) and Central Valley Project (CVP)…
Just as appropriate Delta flow criteria are not limited to existing requirements, development of appropriate flow criteria for the WaterFix does not require promulgation of new water quality objectives. Unlike the more narrow focus of this proceeding, developing any necessary revisions to the water quality objectives contained in the Bay-Delta Plan along with implementation measures for those water quality objectives will entail a much more comprehensive evaluation of the effects of all diversions and other factors on the beneficial uses of water in the Bay-Delta. The Bay-Delta planning processes are not limited to consideration of the impacts of the SWP and CVP on water quality in the Bay-Delta. (See generally, United States v. State Water Resources Control Board (1983) 182 Cal.App.3d 82, 119-122 [promulgation of water quality objectives should not be constrained by or limited to requirements that can be imposed on the SWP and CVP].)
We acknowledge that the WaterFix, if approved, would be a significant component of Delta operations, and it would be preferable to have Phase 2 completed prior to acting on the change petition… At this point, waiting until completion of Phase 2 would significantly delay processing of the change petition…
In determining appropriate Delta flow criteria, the State Water Board intends to rely on the best available science, including the 2010 Delta flow criteria and the Scientific Basis Report for revisions to the Bay-Delta Plan that is being developed to support Phase 2 of the Bay-Delta Plan update. A complete Bay-Delta Plan update is not required, however, prior to processing the change petition.
Further Reading
Bobker, G. et al. 2016. Preliminary Comments Regarding the Notice, Fact Sheet and Petition for Change in Point of Diversion for the California WaterFix. The Bay Institute, Natural Resources Defense Council, Defenders of Wildlife, Golden Gate Salmon Association, Pacific Coast Federation of Fishermen’s Associations, Friends of San Francisco Estuary. January 22, 2016.
Crader, P., et al. 2010. Development of Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem Prepared Pursuant to the Sacramento-San Joaquin Delta Reform Act of 2009. State Water Resources Control Board. August 3, 2010.
Brown, E. 2007. Re: Summary of United States v. State Water Resources Control Board [and seven other cases] (1986) 182 Cal.App.3d 82 (“Racanelli” decision). November 16, 2007.
Jennings, B. et. al. 2016. Comments Regarding Procedural Issues for the 28 January 2016 Pre-Hearing Conference for the California WaterFix Project. California Water Impact Network, California Sportfishing Protection Alliance, and AquAlliance. January 22, 2016.
Racanelli et. al. 1986. United States v. State Water Resources Control Board. Court of Appeals of California, First Appellate District, Division One.
Stroshane, T., et al. 2016. Procedural issues associated with Pre-Hearing Conference, Restore the Delta, Environmental Justice Coalition for Water, Environmental Water Caucus. January 28, 2016.
Wright, B., et al. 2016. Re: Written Comments for January 28, 2016, Pre-Hearing Conference. Sierra Club California, Planning and Conservation League, and Friends of the River. Jan 21, 2016.
Marcus, F., Doduc, T. 2016. California Waterfix Project Pre-Hearing Conference Ruling. State Water Resources Control Board. Feb 11, 2016.
