Posted by: Deirdre Des Jardins | July 28, 2020

Delta tunnel: DWR rejects consideration of No Tunnel alternatives in EIR

The Delta Conveyance Design and Construction Authority convened the 10th meeting of the Stakeholder Engagement Committee on Wednesday, July 22, 2020. Carrie Buckman, the Environmental Manager for the Department of Water Resources, gave a presentation on DWR’s screening of alternatives suggested in the scoping process.

Buckman summarized the Delta tunnel project objectives as follows:

  • CLIMATE RESILIENCY –Addresses climate change, extreme weather, and rising sea levels in the Delta for the SWP
  • SEISMIC RESILIENCY –Minimizes health/safety risk to public from earthquake-caused reductions in water delivery quality and quantity from the SWP
  • WATER SUPPLY RELIABILITY –Restores and protects ability to deliver SWP water in compliance with regulatory and contractual constraints
  • OPERATIONAL RESILIENCY –Provides SWP operational flexibility to improve aquatic conditions and manage risks of additional future constraints

Buckman described the No Tunnel and Through-Delta alternatives as including some combination of:

  • Increase water recycling and conservation efforts
  • Desalination facilities
  • Continued through-Delta conveyance (use of existing facilities) with improvement to Delta levees

Buckman then showed a slide which stated that the alternatives which continued to use through-Delta conveyance did not meet the project objectives of climate resiliency, seismic resiliency, and water supply reliability.

Through Delta

But the Department of Water Resources has not defined “climate resiliency” or “seismic resiliency,” so this assessment is qualitative.  And the single tunnel project that the Delta Conveyance Design and Construction Authority has been developing for the last year may not perform well with salinity intrusion from high sea level rise at 2100, as we pointed out last year.  There is no report of any analysis of the performance of the DCA’s selected intake locations with high sea level rise.

The single tunnel may also not be designed to withstand a maximum earthquake in the Delta.  DWR rescinded seismic engineering standards for the single tunnel project in June of 2019. The DCA has developed draft Conceptual Seismic Design and Geohazard Evaluation Criteria and submitted them to DWR, but has not disclosed the drafts to the Stakeholder Engagement Committee or the public.

Buckman also stated that DWR has rejected alternative local water supplies as not meeting fundamental objectives of “enabling the SWP to continue to function through challenges such as climate change, sea level rise, and earthquake risk.”

No tunnel

But local water supplies are the only supplies that are truly resilient to long term sea level rise, and may also be the only supplies that would continue to be available after a maximum earthquake in the Delta.

The Governor’s Water Resilience Portfolio should have considered the distinction between local water supply reliability and State Water Project delivery reliability, but the Water Portfolio relied on DWR’s definition of “sustainability” as reliability of Delta exports.

DWR’s exclusion of consideration of local water supplies is also contrary to the 2009 Delta Reform Act, according to scoping comments by the Natural Resources Defense Council et al NRDC et. al. commented that the “stated purpose of increased SWP water diversions from the Delta, without any investment in local and regional water supplies to reduce reliance on the Delta, is inconsistent with state law. The Delta Reform Act established state policy to reduce reliance on the Delta and to meet state water needs through investments in sustainable local and regional water supply projects, such as improved water use efficiency and water recycling. Cal. Water Code § 85022.”

This post was updated on July 28, 2020.


Posted by: Deirdre Des Jardins | July 20, 2020

Valley Water proposing to borrow $310 million on parcel tax revenues

On Tuesday, July 21, 2020, Valley Water (formerly Santa Clara Valley Water District) will consider a proposal to renew the Safe, Clean Water and Natural Flood Protection parcel tax.   The Safe, Clean Water parcel tax currently brings in about $46 million a year. The renewal will extend the parcel tax indefinitely so that the district can borrow $310 million against the Safe, Clean Water parcel tax revenue stream.

Valley Water had $506 million in revenue this fiscal year, due to reduced water sales, with $610 million in expenses.  Valley Water’s Board voted to cut $44 million from the FY 2020-21 budget and borrow $136 million against the district’s water sales revenues.   The district’s total indebtedness is currently about $979 million.

Valley Water FY 2020-21 outlays

The Safe, Clean Water and Natural Flood Protection parcel tax is the main source of funding for the district’s fish and wildlife habitat enhancement projects, but it also funds flood protection, pollution prevention, environmental education, and seismic remediation of Anderson Dam.  The April 2020 forecast for the Safe, Clean Water and Natural Flood Protection program projected a small deficit for the program starting in FY 2026, but the total was under $50M.

SCW program deficit

The Safe, Clean Water and Natural Flood Protection Program is overseen by an Independent Monitoring Committee (IMC.)   The IMC requested a status update on the program in February 2020, when staff indicated that a new resolution was needed because of a shortfall of funding for large capital projects.

The IMC is surprised that Valley Water states the need for more funding after only seven years of the fifteen year program. In the FY19 report, there is no indication that projects are underfunded or that KPIs will be unmet with projected funds. The IMC recommends the Valley Water clearly update status of SCW to citizens prior to a new funding proposal.

Valley Water declined to provide an update to the IMC on the SCW program’s financial status or projected deficits in project funding.

California Water Research joined South Bay environmental and fishing groups in a letter expressing concerns about the proposed parcel tax renewal. The letter states in part:

Given Valley Water’s expressed commitment to environmental stewardship, our groups are puzzled by the refusal to address our concerns that the proposed Safe, Clean Water and Natural Flood Protection (“SCW”) program renewal has significant reductions to funding commitments for habitat enhancement, compared to the existing SCW program. As explained by CalTrout in their July 14, 2020 comment letter

“Valley Water has a duty to enact the habitat enhancement measures listed in the Parcel Tax through California Fish and Game Codes and through State Water Board provisions and/or mitigation with District funds. The Parcel Tax provisions that support fish passage and habitat improvements are listed in wide-ranging categories that give Valley Water too much discretion to fund other projects in place of these required restoration activities.”

The budget projection for the second 15 years is even more alarming than the first 15 years – showing a reduction of 50% in commitments for Priority D, Restore Wildlife Habitat and Provide Open Space.

We are alarmed that Valley Water is proposing to issue $310 million in bonds on the SCW parcel tax revenues, with no list of projects that need borrowing for timely completion. Issuing 30 year bonds without any clear explanation of need is contrary to existing Board policy, which directs that debt shall only be issued when there is demonstrated need (Executive limitations section 4.7.2.)

The out-year impacts of immediately borrowing six years of parcel tax revenues on the SCW program will be severe. Funds available for capital projects in the second 15 years could be cut by up to two thirds. We are extremely disappointed to see no proposals to address the issues that the borrowing creates with long-term funding for habitat enhancement and other SCW priorities.

A majority of our groups are opposed to a resolution with no sunset date, and we believe a measure with no sunset date is unlikely to pass. For this reason, we are very disappointed to see no evaluation of an alternative with a sunset date.

We also continue to be concerned about the consolidation of $34 million in grants the existing SCW program dedicated to environmental stewardship, pollution prevention, and volunteer creek clean-ups to the single umbrella grant program in F9. No alternative has been offered to this consolidation of grant programs.

… We request that the Board address these issues and ensure that there will be sufficient funding for Valley Water to meet its duty to fund legally required habitat enhancement projects.

Posted by: Deirdre Des Jardins | July 7, 2020

MWD and Valley Water have yet to commit funds for Delta tunnel design

Metropolitan Water District has two seats on the Board of the Delta Conveyance Design and Construction Authority (DCA), and Valley Water (formerly Santa Clara Valley Water District) has one seat.  But to date, neither agency has committed to pay the DCA’s costs for the planning and engineering design for the single tunnel.

After the Department of Water Resources rescinded all approvals of the project on May 2, 2019, DWR gave the DCA a loan of $19.7 million, which allowed the DCA to continue engineering work on the project.

DCA xpenses

DCA FY 2019-20 income & expenses                             April 2020 Board packet

In August of 2019, three small desert water agencies (Santa Clarita, San Bernardino, and San Gorgonio) gave the DCA their share of the 2019/20 costs, which was $29.4 million.  The DCA’s plan was that the remaining State Water Contractors would give the DCA $101.6 million after approval of the Agreement in Principle for a Delta Conveyance amendment to the State Water Project Contracts. That did not happen, because the AIP negotiations were extended through April of 2020.  Although the DCA spent about a third of what was originally planned in FY 2019-20, the Department of Water Resources had to give the DCA a second loan of $9 million to pay expenses through the end of FY 2019-20.  There is no indication of how expenses will be paid in FY 2020-21.

DCA expenses June 2020

DCA FY 2019-20 income & expenses                            June 2020 Board packet

Although DWR has negotiated a Final Agreement in Principle with the State Water Project Contractors, the Tulare Lake Basin Water Storage District wrote Governor Newsom, requesting that the state not advance further funds to the DCA for the tunnel design.    The letter stated in part:

The most recently negotiated Agreement in Principle (AIP) for the SWP Delta Conveyance Contract Amendment was opposed by TLBWSD and at least one-third of the SWP Contractors… We do not want to participate in the DCF, and we object to DWR loaning our money to sustain the project. Given the State faces its harshest economic time in history, we ask that DCF funding by the State be placed on hold.

We asked Santa Clara Valley Water District to clarify when the District would pay for the District’s share of the DCA’s FY 2019-2020 expenses.  In response, Valley Water Board Chair Nai Hsueh stated,

Valley Water has been waiting for the Delta Conveyance facility project description to be better defined prior to making additional commitments.  We are careful about how we utilize the funds provided by our ratepayers and want a reasonable understanding of benefits, costs, and assurances before providing additional funding to the project.

We also asked when Valley Water would provide funding for Valley Water’s share of the DCA’s FY 2020-21 expenses?  In response, Chair Nai Hsueh stated,

After Valley Water has received additional information regarding benefits, costs, and assurances, Valley Water will bring a decision regarding additional funding for the project to its Board of Directors for consideration.  This may include both decisions regarding providing additional funding for DCA’s FY 2020-21 expenses as well as any reimbursement to DWR.

The Delta Reform Act of 2009 does require that the “persons or entities that contract to receive water from the Delta Conveyance” enter into contracts to pay for the “costs of the environmental review, planning, design, construction, and mitigation… required for the construction, operation, and maintenance of any new Delta water conveyance facility” prior to construction.

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Posted by: Deirdre Des Jardins | June 29, 2020

Delta tunnel: DWR plans for ESA consultation under Trump administration

On June 18, 2020, the Department of Water Resources submitted an application to the US Army Corps of Engineers for a Section 404 Clean Water Act permit for the Delta tunnel.

Getting federal permits for the Delta tunnel is complicated by Attorney General Becerra’s lawsuit over the Bureau of Reclamation’s new Long-Term Operations  for the Central Valley Project.  Reclamation has reportedly refused to be the lead agency for the Environmental Impact Statement for the Delta tunnel under the National Environmental Policy Act (NEPA.)  Instead, the US Army Corps of Engineers is expected to be the NEPA lead.

The US Army Corps of Engineers is also expected to be the lead agency for developing a Biological Assessment of the Delta tunnel project for evaluation of the project under the federal Endangered Species Act.

DWR’s Section 404 Application has the following timeline for obtaining permits (p 31.)

Other permits USACE Delta tunnel

Under ENDANGERED SPECIES (p. 31-31), the Department of Water Resources states that submittal of a BA (Biological Assessment),” is anticipated for late-2020:

The federal action agency will determine if its action may affect a listed species or critical habitat and develop a biological assessment (BA) consistent with this determination. If the action is likely to adversely affect the listed species or critical habitat, the federal action agency will request formal consultation with the Services (United States Fish and Wildlife Service and National Marine Fisheries Service) and this consultation will result in the Services’ issuance of biological opinions. It is anticipated the proposed Delta Conveyance Project will have effects on listed species requiring formal consultation.

DWR will work with USACE to define the scope of the Section 7 consultation process and development of the BA. Submittal of a BA is anticipated for late-2020. Informal coordination with the Services has begun and is ongoing.

The timeline in DWR’s Section 404 application is the same as the timeline reported to the Kern County Water Agency Board earlier this year:

KCWA Delta tunnel timeline

The Bureau of Reclamation’s Endangered Species Act consultation for the Long-Term Operations of the Central Valley Project was a source of outrage by environmental and fishing groups, who characterized the Biological Opinion as dismantling protections for endangered species.  It seems likely that an ESA consultation in 2020 for the Delta tunnel will also be highly controversial.

Posted by: Deirdre Des Jardins | June 22, 2020

Delta tunnel: US Army Corps application has new Eastern alignment

On Wednesday, June 17, 2020, the Department of Water Resources (DWR) submitted an application for a Section 404 Clean Water Act permit for the Delta tunnel to the US Army Corps of Engineers.  With the application, the Department of Water Resources submitted a map of the proposed project, which included the Eastern alignment for the main tunnel, and Intakes 3 and 5 (p. 37, shown below.)

USACE application map

In an accompanying announcement, the Department of Water Resources stated that the submission of the project map to the Army Corps of Engineers with the Section 404 application “is preliminary and should not be construed as a decision by DWR regarding its preferred project.” However, the evaluation of the project does represent a significant commitment of engineering resources, both by the US Army Corps and by the Department of Water Resources.

The selection of the Eastern alignment is a major change from the Central Delta alignment that has been studied for over a decade.  The change is likely driven by major logistical issues with construction of a tunnel and shafts through the Central Delta.

In December of 2019, an Independent Technical Review panel of engineers from five international tunneling companies found that the Central Corridor was logistically impractical.  The ITR panel’s report stated:

The shaft locations are located a significant distance from Interstate 5, accessible by only farm roads with hindrances such as narrow weight-restricted bridges and single lanes. This makes supporting large operations, which requires a constant transfer of materials and people in and out, impractical and expensive as well as difficult to price.

The panel further stated:

While it was recognized that extensive roadway, levee, and likely barge improvements could be constructed as part of the project for the Central Corridor… [t]he cost of improvements to provide reliable and safe access and egress at each site would exceed the cost of additional length of tunnel required for the East alignment.

One example of access issues was the construction of a tunnel shaft on Bouldin Island.  The tunnel shaft was originally planned to be 30 feet above sea level to ensure protection from 200 year floods plus sea level rise.  Since Bouldin Island is 18 feet below sea level, this would require construction of an enormous 48 foot high mound for the tunnel shaft pad.

Bouldin Island tunnel shaft

Simulated view of Bouldin Island Tunnel Shaft mound (closeup)    Source: DWR, 2018 WaterFix EIR

The Delta Conveyance Design and Construction Authority’s traffic analysis found that hauling the fill in to build the mound would require widening Highway 12 to four lanes, westbound from I-5.  A study for CALTRANS in 2006 found that widening Highway 12 to three lanes would cost over $77 million, which is over $98 million in 2020 dollars.  This was just one of extensive roadway improvements and barge landings that would be needed for the Central Delta route.

The change to the Eastern alignment has the added benefit of reducing impacts of the tunnel construction on boating and recreation in the Delta, as well as on historic Chinese and Japanese American districts in Locke and Walnut Grove.  The Eastern alignment also avoids constructing a tunnel shaft in the middle of some of the densest sandhill crane habitat on the west coast, which is shared with huge numbers of migratory waterfowl, with winter counts on Staten Island alone in the tens of thousands.

Sandhill Cranes small

Sandhill Cranes, Sacramento Delta      Source: Shutterstock   

Shifting the tunnel route to the east also significantly reduces the risks of tunnel boring. The Central Delta route tunneled under some of the most subsided islands in the Delta.  Delta Reclamation Districts and their engineers were very concerned about the risks of flooding if the tunneling compromised a levee.  They were also very concerned about the tunnel construction traffic compromising their ability to patrol levees during times of high water.

For these reasons, the selection of the Eastern alignment was greeted with celebration by the Discovery Bay based group, Save the California Delta Alliance.  However, the group did state that impacts of the Eastern alignment still need to be assessed.

The Delta Conveyance Design and Construction Authority’s traffic analysis did show unacceptable Levels of Service for traffic on Byron Highway during commute times for both the Eastern and Central tunnel alignments. The DCA is proposing to construct a new railroad spur adjacent to the Byron Highway to haul construction materials.  This would partially alleviate impacts on Byron Highway. Traffic on Highway 4 is projected to have small increases but to stay within acceptable levels of service.

Byron Highway Traffic

Eastern Alignment Traffic Analysis         Source:  DCA 5-27 presentation

The project is also expected to increase traffic on I-5 in Stockton by 1-4% during peak commute times.  The DCA’s traffic analysis projects that the Level of Service during peak commute times on I-5 will be unacceptable, but the congestion will be primarily due to pre-existing traffic.

I-5 traffic DCA

I-5 Traffic Analysis     Source:  DCA 5-27 presentation

Posted by: Deirdre Des Jardins | June 22, 2020

Will SCVWD reallocate special funding for creek restoration?

Santa Clara Valley Water District is proposing to reauthorize the Safe, Clean Water and Natural Flood Protection Program parcel tax, although the existing parcel tax was authorized through 2028.  The draft 2020 parcel tax resolution will be considered at the June 23, 2020 Santa Clara Valley Water District Board meeting.

The draft 2020 resolution appears to eliminate an existing grant program that would provide $21 million for creek and wetland restoration, in favor of a multibenefit grant program with no specified level of funding.  It increases funding for seismic retrofit of Anderson Dam by $9 million, and provides $10 million for the Pacheco reservoir expansion.  It also increases funding for fish passage projects from $6 million to $8 million.

The tables in the Appendices to the Board’s draft 2020 resolution show the priorities for expenditure of funds.  Creek and wetland restoration is under Priority D: Restore Wildlife Habitat and Provide Open Space Access.

The 2020 resolution eliminates this priority category in the 2012 resolution:

D3 Partnerships and Grants to Restore Wildlife Habitat and Provide Access to Trails

  1. Develop 5 Stream Corridor Priority Plans to prioritize stream restoration activities.
  2. Provide 7 grant cycles and additional partnerships for $21 million that follow preestablished criteria related to the creation or restoration of wetlands, riparian habitat and favorable stream conditions for fisheries and wildlife, and providing new public access to trails.

The FY 2019 Annual Report for the parcel tax expenditures showed only 30% of the funds proposed for Priority D3 expended, for a total of  about $7.2 million, even though the program was halfway through its 15 year lifetime. (p. 74, pdf p. 92.)


Coyote Creek where it flows into the south San Franciso Bay, with the Guadalupe River joining it, and the Guadalupe Slough entering just to the west.           Source:  Dicklyon / CC BY-SA

The Board’s draft 2020 resolution appears to reallocate the unexpended funds for Priority D3.   Section R of the resolution does provide for continuity of the District’s wetland and creek restoration efforts:

All other projects and programs identified in the prior Safe, Clean Water and Natural Flood Protection Program will be replaced by comparable projects or programs with similar or expanded obligations under the updated Safe, Clean Water and
Natural Flood Protection Program.

But is unclear from the draft 2020 resolution exactly how funds would be provided.  The draft 2020 resolution has a new multibenefit grant program, but no specified level of funding:

F9  Grants and Partnerships for Safe, Clean Water, Flood Protection and Environmental Stewardship

  1. Provide three (3) grant cycles every five (5) years that follow pre‐established competitive criteria related to safe, clean drinking water, flood protection and environmental stewardship.
  2. Provide two (2) partnership cycles every five (5) years for projects related to safe, clean drinking water, flood protection and environmental stewardship.
  3. Provide annual funding for bottle filling stations to increase drinking water accessibility, with priority for installations in economically disadvantaged communities and locations that serve school‐age children and students.
  4. Provide annual mini‐grant funding opportunity for projects related to safe, clean drinking water, flood protection and environmental stewardship.

The 2020 resolution does increase funding for Priority D4, Fish Habitat and Passage Improvement, by $2 million.

The 2012 bond resolution had a sunset date of 2028.  The new bond resolution only sunsets when ended by the voters. Both the new resolution and 2012 bond resolution contains language allow the Board to not implement proposed projects:

L. The Board of Directors may direct that proposed projects in the Safe, Clean Water and Natural Flood Protection Program be modified or not implemented depending upon a number of factors, including federal and state funding limitations and the analysis and results of CEQA environmental review and permitting by state and federal regulatory agencies. The Board of Directors must hold a formal, public hearing on the matter, which will be noticed by publication and notification to interested parties, before adoption of any such decision to modify or not implement a project.

The new resolution also contains language allowing the Board to “identify and prioritize new projects for inclusion in the program.”

K. As projects under the Program are completed, the Board of Directors shall identify and prioritize new projects for inclusion in the Program. These new projects may be identified and proposed for Board approval at a public meeting through the Board’s review and approval of the Program’s 5-Year Implementation Plans, the first of which will be produced by the CEO or designee of Valley Water in year one of the Program and every five years thereafter; or, as directed by the Board.


Amendment No 2 to JEPAThe Department of Water Resources has executed a 2nd amendment to the Joint Exercise of Powers Agreement (JEPA) with the Delta Conveyance Design and Construction Authority (DCA.)  The 2nd Amendment would allow the DCA to start acquiring property and easements for the Delta tunnel project at 60% engineering design for any part of the project.  It is unclear when the DCA is planning to be at 60% design, and whether land will be acquired for the Delta tunnel project before the Final Environmental Impact Report and Notice of Determination under CEQA.

Exhibit E to the 2nd Amendment to the JPA states:

The Authority shall conduct real property transactions (fee and easement), utility relocations, appraisals, offers, and interim property management, identification, disposal of surplus lands, and other right-of-way functions in the name of the DWR according to DWR’s rules, regulations, policy and procedures.

Exhibit E explains how the DCA will determine what lands, easements, and rights of way need: to be acquired, and develop and submit a Real Estate Plan for approval by DWR:

The Authority will determine the lands, easements and rights-of-way necessary for construction, operation and maintenance of the conveyance facility including those rights required for temporary construction areas, mitigation sites, borrow sites, spoil sites, access/haul routes, staging areas, private and public utility relocations, temporary and permanent power, and providing relocation assistance for qualified occupants and businesses of acquired property, as required by state and federal statutes, rules and regulations described in detail below.  […]

Real Estate Plan: The Authority will develop and submit to DWR a Real Estate Plan(s). The Authority may elect to submit a Real Estate Plan by Project Element, Project Feature, or Project Phase. The Project Real Estate Plan will include information gathered during the Acquisition Planning and Property Assessment Phases of the Land Acquisition process shown in Exhibit A.

The Real Estate Plans will include a narrative description of the identified real estate requirements including a breakdown of Authority’s estimate of total acreage to be acquired, and type of real property interests to be acquired. The Real Estate Plans shall include all lands required for other Conveyance Project purposes, such as mitigation and other regulatory needs and identify proposed end land uses for project lands…

The Authority’s Project Real Estate Plan will need to be based on, at a minimum, 60% designs, plans and specifications, which shall include: topographic drawings with the Project design features illustrated, assessor parcel numbers (APN), property lines, flood management structure, private utility relocations with the responsible party to relocate or protect in place noted and mitigation sites, borrow sites, spoil sites, access/haul routes, and staging areas. Additional items to consider include identifying potential uneconomic remnants, parcels to be acquired for exchange purposes, a proposal for excess lands, and interim property management.

It is currently unclear if the DCA is planning to publicly disclose the  “Real Estate Plans” submitted for approval to the Department of Water Resources, or the property that is acquired under the Real Estate Plans.  The Joint Exercise of Powers Agreement only requires the DCA to give the Department of Water Resources “access as requested to its records relating to … land acquisition.”

Posted by: Deirdre Des Jardins | June 8, 2020

Systemic racism and implementation of environmental laws in California

In light of recent events, we all need to be considering how California systematically fails to protect the lives of black and minority residents.  It’s not just turning a blind eye to police misconduct, but also failing to value black and minority lives in implementation of environmental laws.


California smog.   Art Page

Pollution disproportionately impacts minority communities.  As reported by Tony Barbarossa in the LA Times, a 2014 California Environmental Protection Agency analysis found that

Nearly 10% of residents of the most polluted ZIP Codes are black, though they make up only 6% of the population statewide … Whites, in contrast, are more than 40% of the state’s population but only 16% of residents of the most polluted ZIP Codes.


Latinos account for nearly two-thirds of residents in the top 10% most polluted ZIP Codes despite making up only 38% of the state’s population…

The disproportionate exposure to pollution has a very real effects on black Californians.  One of the worst impacts is increased incidence of asthma. According to a 2013 report by the California Department of Public Health, “[c]ompared to Whites, Blacks have 40% higher asthma prevalence, four times higher asthma ED visit and hospitalization rates, and two times higher asthma death rates.” There is no doubt that increased exposure to air pollution is a major contributor.

California’s Environmental Quality Act (CEQA) allows community groups and nonprofits to challenge projects that would result in increased exposure to air, water, and groundwater pollution. But developers and other rich and powerful interests have sought to undermine CEQA’s citizen enforcement of environmental protections under the guise of “streamlining.”

One of the worst “reform” bills is AB 3279, California Environmental Quality Act: administrative and judicial procedures, introduced by Assemblymember Laura Friedman.

AB 3279 would prioritize hearing of California’s Environmental Quality Act cases over all other civil cases, including civil rights and police misconduct cases, potentially leading to significant delays and increases in costs for those cases. (Section 21167.1 (a).)

AB 3279 would also make it prohibitively expensive for disadvantaged minority communities to challenge polluting projects in their neighborhoods. Current law allows community groups and nonprofits filing CEQA petitions to prepare the administrative record for the court case. This usually results in a substantial decrease in costs for the litigation.

AB 3279 would only allow CEQA petitioners to prepare the CEQA administrative record if the lead agency requests it.  (Section 21167.6) The environmental attorneys I have talked have universally stated that AB 3279’s cost-shifting provision would effectively end CEQA challenges to projects by community groups and nonprofits, and even put nonprofits out of business.

In one widely publicized case, California Oak Foundation v. UC Regents, the UC Regents initially notified the California Oak Foundation that preparing the CEQA record would cost $24,000, but then billed the Foundation for $51,000.

Because AB 3279 would create huge barriers for Environmental Justice lawsuits, the bill was opposed by

  • California Environmental Justice Alliance
  • Center on Race, Poverty & the Environment
  • Communities for a Better Environment
  • Leadership Counsel for Justice & Accountability
  • Physicians for Social Responsibility – Los Angeles

AB 3279 is also opposed by Sierra Club California, the Center for Biological Diversity, and other environmental groups, as well as the State Building and Construction Trades Council.

With the Capitol building on lockdown due to the pandemic, AB 3279 passed the Assembly Monday morning, June 8, 2020. It is unclear that the Assemblymembers who voted for the bill even bothered to consider the reasons for opposition to the bill by Environmental Justice, environmental, and labor groups.

There is little doubt that AB 3279 would have enormous impacts on disadvantaged minority communities throughout the state, as well as resulting in delays for civil rights and police misconduct lawsuits.

On Monday, June 1, 2020, the State Water Resources Control Board sent a letter to Ernest Conant, Mid-Pacific Director of the Bureau of Reclamation, objecting to Reclamation’s 2020 Sacramento River Temperature Management Plan.

Under Water Right Order 90-5, Reclamation is required to operate Shasta and Keswick Dams to provide adequate cold water in the Sacramento River for Chinook salmon. Reclamation’s new operations of Shasta Reservoir aggressively release water for exports south of the Delta, depleting Shasta’s cold water pool.  Environmental groups and Water Board staff were concerned that Reclamation estimated that there could be 28 percent temperature dependent mortality of in Winter Run Chinook salmon under the proposed operations.


Shasta Dam / Robert Campbell / CC BY-SA

As explained by the Natural Resources Defense Council et. al.,

While inflow to Shasta in 2020 has been very low, Reclamation also began the year with maximum water storage behind Shasta Dam. Reclamation has the ability to provide better water temperatures and  reduced mortality of endangered salmon, but instead chose to “maximize water deliveries.” The level of temperature‐dependent mortality predicted this year is unreasonable, particularly given this level of water storage at the beginning of the year. Moreover, Reclamation’s proposed operations would greatly reduce carryover storage in Shasta, leaving California vulnerable if 2021 is also dry.

State Water Board staff expressed similar concerns and requested “approaches that could lower mortality and improve carryover storage conditions.”

The State Water Board’s letter to Conant states:

State Water Board staff repeatedly requested that Reclamation provide information on operational scenarios other than those proposed in Reclamation’s TMP that could allow for better temperature control. Unfortunately, Reclamation has failed to provide the requested information. This information is needed to inform adequate temperature management. Since Reclamation has declined to provide the information, the State Water Board does not have sufficient information to make a well-informed decision on Reclamation’s final TMP. We are therefore unable to approve the TMP, and object to the plan.

In the spirit of cooperative federalism, we expect that Reclamation will provide the information we requested. In order to be in a position to potentially improve temperature conditions this year, the State Water Board needs the requested analyses within 20 days from the date of this letter. If this information is provided timely, we will reevaluate the TMP and consider approval at that time.

It is unclear whether Reclamation shares the State Water Board’s “spirit of cooperative federalism.”

The COVID-19 pandemic could have significant impacts on population growth in California, due to reduced immigration, as well as reduced birth rates due to the massive economic impacts.  This should be taken into account in planning for future infrastructure needs, including water supply infrastructure.

The demographic projections by the Department of Finance in the Governor’s 2020-21 Budget showed a significant reduction in forecasted population growth, stating:

Recently updated population projections reflect decreased expectations for future population growth. The net annual population increase is expected to fall to less than 100,000 by 2045, and close to zero net growth by 2060. Fewer births lead to fewer adults, which compounds the slowing growth over time. The current projections series reach a total population of 45 million by 2060, rather than 50 million in the previous iteration.   (2020-21 Full Budget Summary, p. 206.)

Annual population 20-21 budget proj

Projected Annual Population Growth, 2020-21 Budget

If net migration continues to be close to zero, rather than increasing as projected by the Department of Finance in December of 2019, projected population growth would decrease significantly.  In discussing the projections DOF also noted:

The new projections assume the state reverts to net migration flows of around 100,000 per year in the long term, in line with the average during 2010 through 2019… In a scenario with zero net migration, the state’s population peaks at 42 million in 2038 and thereafter declines to 40 million by 2060. (2020-21 Full Budget Summary, p. 207.)

If there is a prolonged, deep recession, birth rates could also be reduced. A study by Brian Finch et. al. of adverse birth outcomes in California during the Great Recession found that the total fertility rate declined just prior to the Great Recession in 2007, and leveled off from 2010 to 2012. Those with a less than High School Education had sharp declines in birth rates after the start of the Great Recession.

While the long term effects of the COVID-19 pandemic on the California economy and on immigration are still uncertain, it also seems clear that assumptions of future growth in California based on pre-pandemic population trends should be re-examined, as should water supply planning based on those assumptions.

See related commentary from Dan Walters on May 21:

California population may be peaking


This post was updated on May 31, 2020 to include links to Dan Walters’ commentary.

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