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same time, the Board maintains it intends to process the application it has in front of it until that application is withdrawn or modified.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


Governor Newsom has announced the appointment of Laurel Firestone, co-founder of the Community Water Center, to the State Water Resources Control Board. Firestone was appointed instead of reappointing the current Water Board Chair, Felicia Marcus. While Firestone is a gifted attorney with deep knowledge of the drinking water crisis in the San Joaquin Valley, her replacement of Marcus on the Board is a major shift in the expertise of State Water Resources Control Board members.

The failure to reappoint Board Chair Felicia Marcus represents a significant loss of institutional knowledge on the Water Board at a critical time in the Board’s development of a once in a generation update to the Bay-Delta Water Quality Control Plan. Marcus presided over the Board during the past six years of development of the update.

Marcus’ experience with the Bay-Delta Water Quality Control Plan dates back to her appointment in 1993 as administrator for EPA Region IX. Marcus was EPA Region IX administrator during the development of the Water Board’s 1995 Bay-Delta Water Quality Control Plan, which is the basis for the current (2006) plan. Marcus had a deep knowledge of the details and implementation of the 1995 and 2006 Water Quality Control Plans, their successes, and their failure to halt the decline of fish populations in the Sacramento San-Joaquin Delta.

Marcus was also co-hearing Officer for the WaterFix Water Right Change Petition Hearing, which is the most significant water rights hearing since the original Central Valley Project and State Water Project permits were granted in 1960 and 1968. Marcus heard hundreds of hours of testimony on the WaterFix project and its potential impacts, and on the decline of pelagic fish populations in the Bay-Delta. Marcus was also considering testimony in that hearing on the historic mandate of the 2009 Delta Reform Act to determine “appropriate Delta flow criteria” to be included in any order approving the WaterFix Change Petition.

According to legislature’s 2009 floor analysis, the Delta Reform Act’s requirement for the Water Board’s to adopt “appropriate Delta flow criteria” “reflect[ed] a landmark concept of the state exercising its public trust authority to ask – FIRST – what the Delta needs, before completing plans for fundamental change to the nature of the Delta.” Contrary to the clear intent of the legislature, the Department of Water Resources has proposed in the Board’s WaterFix hearing that the Board not adopt any “appropriate Delta flow criteria” in the order approving the WaterFix Water Right Change Petition.

The Water Board’s notice for the WaterFix Water Right Change Petition hearing stated that any “appropriate Delta flow criteria” adopted in the hearing would be only “interim” in nature, and that the final flow criteria would be adopted in the pending Bay-Delta Water Quality Control Plan Update. During the entirety of the WaterFix hearing, the Department of Water Resources secretly attempted to negotiate Voluntary Settlement Agreements with senior water rights holders on the Sacramento and San Joaquin River. Governor Brown became involved in negotiating the Voluntary Settlement Agreements in 2018 in a last ditch attempt to resolve major opposition to the WaterFix project by senior water rights holders.

Under Governor Brown’s direction, Karla Nemeth, the Director of the California Department of Water Resources, announced a framework for Voluntary Settlement Agreements at the Water Board’s December 2018 hearing on the Board’s Phase 1 Water Quality Control Plan Update. Nemeth also demanded to take over writing the Board’s Substitute Environmental Document for the WQCP Update to revise it to incorporate the Voluntary Settlement Agreements. This would have essentially usurped the Water Board’s exercise of the adjudicatory and regulatory powers of the state in the field of water resources.

The Board’s Executive Director, Eileen Sobeck, recommended rejection of Nemeth’s demand as contrary to the Board’s regulations, which require the Water Board to be lead agency for the environmental documents for the Water Quality Control Plan Updates. Sobeck recommended that the Water Board instead analyze the Voluntary Settlement Agreements as one of the alternatives in the update. Under Marcus leadership, the Board members approved Sobeck’s recommendation.

Newsom’s cabinet has been continuing negotiations of Voluntary Settlement Agreements with senior water rights holders. The loss of Marcus calls into question whether Newsom’s administration will allow the Water Board to continue its adjudicatory and regulatory processes as an independent agency, or seek to dictate the Board’s decisions as was done under Governor Brown.

 

 

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.

Fugro announced on January 23, 2019 that they will be leading a consortium of 5 consultants and 35 specialty subcontractors to provide geotechnical investigations for the WaterFix project. The services will include geological assessment, geophysics, drilling, sampling and laboratory testing. The contract is valued at $75 million.

Dr. Clyde Thomas Williams is a PhD geologist with 30 years of experience with underground projects, including tunnel and pipeline projects around the world, who testified in the State Water Resources Control Board’s hearing on the WaterFix Change Petition.   Dr. Williams testified that a full geotechnical evaluation for the project could result in significant changes to the tunnel and shaft designs and likely significant increases in cost and time. Dr. Williams’ testimony stated in part,

Because the required geotechnical evaluation has not been done, I consider it likely that many aspects of the Project will change. Masoud Manzari did a study of managing geotechnical risks of tunnel projects in soft ground. Manzari’s presentation on the study was titled, Soft Ground Site Investigation & Managing Geotechnical Risks In Tunnelling. The presentation includes the graph on the following page, showing the number of change orders to the projects he studied as a function of the number of boreholes per linear feet of tunnel route. The number of change orders goes up almost exponentially as the number of boreholes decreases. The boreholes for the WaterFix project are on the extreme lower end of the X axis on Manzari’s graph.

In addition, while the leakage analysis done to validate the tunnel lining design (Exhibit DWR-659) looks competent, the analysis methodology is based on a 1994 paper by Fernandez, who derives his estimates from assumptions for rock tunnels. The assumptions almost certainly don’t apply to tunnel linings in soft alluvial deposits beneath the Delta and especially for the connecting tunnel/shaft portions. I would therefore expect that there will need to be significant changes to the tunnel design to ensure that the proposed segmented tunnel lining will not develop leaks under long-term operation. Due to cost escalation issues, an adequate design could require significant changes in the currently proposed tunnel alignment to move the segmented lining to better soils.

Based on my 30 years of experience with underground projects, I think it likely that there will be significant changes to the tunnel and shaft designs and likely significant increases in cost and time. I do not consider a project that is subject to a cost escalation of more than 30% to have a final/biddable/construction design, or even preliminary designs.

Posted by: Deirdre Des Jardins | February 4, 2019

Presentation to Delta residents on WaterFix construction impacts

On Thursday, January 31, 2018, local Delta residents organized a meeting “to unite in defense of impacts from California WaterFix on North Delta legacy towns.” About 130 people came from all over the Delta. Deirdre Des Jardins, principal at California Water Research, presented information on WaterFix impacts on public health, including:

  • Construction noise impacts in Hood & Clarksburg
  • Fugitive dust from construction areas & up to 4.4 square miles of tunnel muck piles
  • Toxics (Chromium VI and arsenic in tunnel muck)
  • Haul routes and traffic from 24/7 construction

The presentation is available here:  WaterFix construction impacts

EIS noise contours

Posted by: Deirdre Des Jardins | January 8, 2019

True California Water Leadership: Facing Difficult Choices [Part 1]

As Governor Jerry Brown leaves office, there has been a flurry of press releases and media coverage about the Brown administration’s leadership on California water issues. But true leadership in California water is not cheerleading for new water diversion projects. True leadership in California water involves addressing major ongoing conflicts between beneficial uses and the hard choices that need to be made in an age of increasing demands and finite resources. In this context, the true California leaders in the Brown administration have not been Governor Brown, Director Nemeth, or Secretary Laird, but the chairs of the State Water Resources Control Board and Delta Stewardship Council, two regulatory agencies which recently faced these conflicts and took difficult and politically unpopular regulatory actions that needed to be taken.

Delta Reform Act of 2009

The historic context for the recent actions by the State Water Resources Control Board and the Delta Stewardship Council is the Delta Reform Act of 2009. The Delta Reform Act mandated that the State Water Resources Control Board set “appropriate Delta flow criteria” that is protective of public trust resources, and that the criteria should be included in any order approving a change in Point of Diversion for the State Water Project. The floor analysis for the Delta Reform Act stated,

This bill’s “flow criteria” reflect a landmark concept of the state exercising its public trust authority to ask – FIRST – what the Delta needs, before completing plans for fundamental change to the nature of the Delta…

The requirement for the State Water Resources Control Board to set comprehensive instream flow criteria had been identified as a key issue in a 1978 report by the Governor’s Commission to Review Water Rights Law.  The Commission was created by Governor Jerry Brown during his first term, in the height of the 1976-77 drought. The Commission recommended:

That comprehensive instream flow standards be set on a stream-by stream basis by the State Water Resources Control Board and that the Board comply with these standards in its administrative and adjudicatory decisionmaking; that instream flow standards be expressed in terms of certain quantities or flows of water which are required to be present at certain points along the stream at certain times of the year to protect fishery, wildlife, recreational, aesthetic, scenic and other beneficial instream uses;

It took another three decades for state legislation to be passed that would address the need for comprehensive minimum instream flow standards. The Delta Reform Act of 2009 not only required that the State Water Resources Control Board set “appropriate Delta flow criteria,” it also required that the State Water Resources Control Board send a report to the legislature giving costs for preparing instream flow standards for rivers and streams in the rest of the state.

Unfortunately, the historic mandate for the Water Board to set new instream flow standards was met with stiff resistance from water diverters in the state, including the California Department of Water Resources. The Department of Water Resources proposed that the Board determine no new Delta flow criteria for inclusion in DWR’s permits when approving the WaterFix Change in Point of Diversion. When the Water Board nevertheless persisted in determining new Delta flow criteria, the Department of Water Resources proposed to take over the writing of the Substitute Environmental Document for the Board’s Bay-Delta Water Quality Control Plan Update.   The action was clearly backed by Governor Brown.

An Unconstitutional Power Grab

In a difficult and politically unpopular decision, the Water Board rejected the power grab by the Department of Water Resources and Governor Brown and voted instead to approve the draft Water Quality plan prepared by the Water Board’s staff.  This act was historic, and its significance should be recognized. The Water Board’s decision was the only one that respected the state constitution and the mandate of the legislature in 2009. The Water Board exercises the adjudicatory and regulatory powers of the state over water resources, and should not delegate those powers. The Delta Reform Act also mandated that the Water Board, not the Department of Water Resources, determine appropriate Delta flow criteria.

An Inconvenient Truth

It is an inconvenient truth that the best available science points to the need for increased instream flows in the Sacramento-San Joaquin Delta to protect fish and other public trust resources.   The Scientific Basis Report for the Water Board’s Bay-Delta Water Quality Plan Update clearly documented this science, and was independently peer-reviewed.   It would have been politically expedient for the Water Board chair and members to disregard their own Scientific Basis report and approve the Department of Water Resources’ proposal on 15 year voluntary agreements.   But the voluntary agreements were so weak that the environmental groups that had been participating in the settlement negotiations sent a letter to the Water Board stating that the agreements were insufficient to meet legal requirements or protect fish and wildlife.

It has been recognized for decades that there are no easy solutions in the Delta.  Balancing public trust resources with increasing demands requires difficult and politically unpopular actions.   Facing these choices, rather than kicking the can down the road, is an act of true leadership in California water.

This post was updated on 1/8/2019.

A coalition of environmental groups, including the Environmental Water Caucus, California Water Impact Network, California Sportfishing Alliance, Restore the Delta, Planning and Conservation League and Southern California Watershed Alliance sent an end of year letter to Senators Diane Feinstein and Kamala Harris, and Representative Jared Huffman, calling for funding of environmentally superior alternatives to new dams.  Proposed alternatives included recycling, storm water capture, and groundwater treatment.  The letter referred to the Environmental Water Caucus Report, A Sustainable Water Plan for California.

031217_2104_FullSanLuis1.jpg
San Luis Reservoir

California Water Research joined the environmental groups in urging California’s two Senators and Representative Huffman to prioritize the San Luis (B.F. Sisk) Dam seismic remediation over federal funding for new California dams. The groups also called for delay of major multi-year spending commitments until costs for the seismic remediation of San Luis Dam are available. After the Oroville Spillway incident, California Water Research blogged about the long standing issue with geotechnical deficiencies in the San Luis Dam embankments. San Luis Dam is in a very seismically active area. Independently reviewed risk assessments for Reclamation have shown that a large earthquake could lead to crest settlement and overtopping of the dam, which would result in large uncontrolled releases and likely dam failure.

As covered by Ezra Romero for Valley Public Radio in April 2017, failure of San Luis Dam would create an enormous path of destruction, almost 10 miles wide and over 80 miles long, from Los Banos to Antioch in the western Delta. The inundation would immediately hit Santa Nella (population 1,400) and Los Banos (population 37,000). It would flow through western Merced and Stanislaus counties, impacting West Modesto (population 5,600.) In San Joaquin County, the inundation would impact the western part of Manteca (population 72,000), the western part of Stockton (population 298,000.) In Contra Costa County, the inundation would impact Discovery Bay (population 14,000), and Brentwood (population 55,000.) In 2003, the San Joaquin County Office of Emergency Services estimated that 165,000 people were in the inundation path in San Joaquin County alone. Failure of the dam would also cause major disruptions for years in the water supply for the Central Valley Project and State Water Project.

Although seismic remediation of San Luis Dam is scheduled to begin in 2020, no funding has been requested by Reclamation and release of the Environmental Impact Statement has been delayed until July 2019.

Posted by: Deirdre Des Jardins | December 6, 2018

Why more storage won’t help conflicts on the Lower San Joaquin River

1 New Melones Dam, owned by US Bureau of Reclamation Source: Wikipedia

The United States Congress is currently considering an extension of the controversial 2016 Water Infrastructure Improvements for the Nation Act or WIIN Act. Section 1 of the extension would appropriate an additional $134 million per year for the next five years for new dams, for a total of $670 million. One of the main reasons cited for providing additional funding for new dams in California is the State Water Resources Control Board’s proposed updates to the Bay-Delta Water Quality Control Plan. But new dams won’t help reduce the conflicts with the State Water Resources Control Board’s new Lower San Joaquin River flow objectives, because none of the proposed new dams are on the tributaries to the lower San Joaquin River which are affected by the proposed LSJR flow objectives. (The proposed emergency spillway modifications at New Exchequer would increase storage slightly, but at the cost of affecting the safety of the dam.)

According to the Water Board’s Technical Report for the Scientific Basis for the San Joaquin River flow objectives, three huge new dams on the tributaries to the Lower San Joaquin River were built in the late 1960s and early 1970s. New Exchequer Dam was completed on the Merced River in 1967, New Don Pedro on the Tuolumne River in 1970, and New Melones on the Stanislaus River in 1978.

With New Exchequer Dam, the dams on the Merced River can store 120% of the median annual flow of the Merced, or the entire flow in 65% of years. With New Don Pedro Dam, the dams on the Tuolumne River can store 170% of the median annual flow of the Tuolumne, or the entire flow in 80% of years. and with New Melones Dam, the dams on the Stanislaus River can store 260% of the the median annual flow of the Stanislaus, or the entire flow in 95% of years. So the conflicts on the Lower San Joaquin River do not stem from inadequate reservoir storage, but rather from the ability to divert and store the entire annual flows of the three tributaries to the Lower San Joaquin in most years.

Major dams on Lower San Joaquin River Tributaries

 

Stanislaus River

Tuolumne River

Merced River

Median Annual

Unimpaired Flow

(1923-2008)

1.08 MAF

1.72 MAF

0.85 MAF

Total Reservoir Storage

2.85 MAF

2.94 MAF

1.04 MAF

Reservoir Storage as % of median flow

264%

171%

122%

% of Years Unimpaired Flow < Total Reservoir Storage

95%

80%

65%

Major Dams

New Melones

(1978, 2.4 MAF)

Tulloch, Beardsley, Donnells

(1957-8, 203 TAF)

New Spicer Meadows

(1988, 189 TAF)

New Don Pedro

(1970, 2.03 MAF)

Hetch Hetchy

(1923, 360 TAF)

Cherry Valley

(1956, 273 TAF)

New Exchequer

(1967, 1.02 MAF)

 

The Water Board’s permits for New Exchequer, New Don Pedro, and New Melones dams were issued over 40 years ago. The conflicts between human uses of water and ecosystem needs have grown enormously in the past four decades. Diversion data from 1984 to 2009 shows that the some of the highest diversions, as a percent of flow, occur during the critical February to June period when San Joaquin Chinook salmon are rearing and migrating. The Water Board looks at ecosystem flows as a percentage of estimated unimpaired flows on the river. From February to June, 79% of the unimpaired flow Tuolumne River has been diverted, 74% of the Merced River, and 60% of the Stanislaus River.

1984-2009

  Stanislaus River Tuolumne River Merced River
Median Annual % of Unimpaired Flow 58% 40% 46%
Median Feb-Jun % of Unimpaired Flow 40% 21% 26%

The Bay Institute produced these graphs of flows on the Lower San Joaquin River and its tributaries from 1995 to 2016. Except for the extremely wet year of 2017, the Lower San Joaquin and its tributaries have been almost dried up from February to June since 2012.   This is the critical time for migration and rearing of a number of fish, including Chinook salmon.

 

 

Palo Alto

Downtown Palo Alto

At a Special Meeting on Wednesday, December 5, 2018 the Board of Directors of the Santa Clara Valley Water District will consider a letter from the attorney for the City of Palo Alto about the State Water Project tax that SCVWD imposes on parcels in the District. The letter states in part,

The purpose of this letter is to reassert the City’s position that the Santa Clara Valley Water District’s longstanding practice of taxing property owners in Palo Alto and other parts of Santa Clara County who do not receive water from the SWP to pay for the entirety of the District’s SWP contractual obligations, rather than attempting to fund those costs from rate payers who use SWP water, is clearly inequitable and legally tenuous.

And concludes

Local water districts that undertake SWP funding in the same manner as the District are susceptible to legal challenge by taxpayers, advocacy groups, and public agencies. The City is aware of at least one citizen-initiated effort in another part of the state to redress such unfair taxation, and the impetus to challenge these practices will become greater if SWP costs increase substantially as anticipated.

Under Proposition 26, there is a mandatory nexus between fees and cost of service.  For water districts such as Palo Alto and Purissima Hills that rely on water from Hetch-Hetchy, the connection between Santa Clara Valley Water District’s SWP parcel tax and water supply costs is tenuous at best. The SCVWD staff are recommending that the Board not implement the California WaterFix portion of the State Water Project tax until DWR’s CWF bond validation action is successful. The staff powerpoint indicates that the District is also planning to establish grants to water agencies that serve communities in which 85% of water supply is not District-managed up to amount of the State Water Project tax paid.

The State Water Resources Control Board has drafted a proposed update to the Bay-Delta Water Quality control plan that would require significantly increased flows on the San Joaquin River and its tributaries. The plan has been fiercely opposed by water rights holders on the San Joaquin River.

Phase 1 update

1 Phase 1 WQCP update would mandate increased minimum instream flows on San Joaquin River and tributaries

On Tuesday, November 6, 2018, just after Gavin Newsom was elected Governor, Governor Brown and Governor-elect Newsom sent a request to the State Water Resources Control Board to delay voting on the Phase 1 Water Quality Control Plan update until December 12, 2018. They stated that

A short extension will allow these negotiations to progress and lead to a faster, more durable outcome.

Led by Board Chair Felicia Marcus, the Board voted 3-0 to approve the request. In deciding to support the Governor and Governor-elect’s requests to delay vote, Chair Felicia Marcus stated,

I call on the better angels of everyone’s nature. If it’s more of the same we will have wasted 30 days of our’s, your’s and the governor’s time.

Board members Steven Moore and Tam Doduc abstained from the vote. Moore is retiring from the Board to take a position with Ross Sanitary District, starting November 13, 2018. Moore and Board member Tam Doduc had expressed support for taking action at today’s meeting.

The Natural Resources Defense Counsel and other environmental groups are concerned that Governor Brown is working with the Department of Water Resources and the California Department of Fish and Wildlife to weaken the proposed flow requirements. Governor Brown’s administration is seeking to modify the Water Board staff’s plan with a “functionally equivalent” plan, based on voluntary settlement agreements and “functional flows.” The agreements would require modification of the Board’s draft order. With Moore’s retirement next week, the Board may lose the votes necessary to approve the currently proposed Phase 1 update.

In today’s hearing, Board Chair Felicia Marcus mentioned the history of gubernatorial interference with Water Quality Control Plans. The last California governor to interfere with a Bay-Delta Water Quality Control Plan update was Governor Pete Wilson in 1993, with Decision 1630. The Wilson administration’s interference began with a similar request for an extension of one month. Decision 1630 states:

Director David Kennedy of the Department of Water Resources has requested an extension of at least one month, and has stated his opinion that the additional time would not foreclose any options for further regulatory action.

But Governor Wilson then directed the Water Board to abandon Decision 1630.

Water Rights Attorney Marc Del Piero was the Vice-Chair of the State Water Resources Control Board from 1992-1999. In April of this year Del Piero testified in the Board’s WaterFix Water Right Change Petition hearing about the consequences of Governor Wilson’s interference with Decision 1630:

In 1992 and 1993, while I was serving on the SWRCB, we came very close to adopting a Water Rights Decision (Draft Decision 1630) that would have addressed many if not all of those desired outcomes sought for the Delta today. I supported that draft and its policies. However, the then-administration intervened to keep the Board majority from adopting the draft decision, which subsequently led to adoption of the Bay Delta Accord in 1994, followed by the establishment of the CalFED process, and the DWR-initiated “Monterey Amendments” to the State Water Project (“SWP”) contracts. These band-aid, compromise actions clearly failed to keep the promise of “balance” and to protect the public trust resources in the Delta. Further, the condition of the Delta, its eco-systems, its public trust and agricultural resources, and its endangered species and fisheries became even worse by the actions of a subsequent administration that allowed DWR to increase real exports from the Delta in 2001 that pushed the ecosystem into near collapse by 2007.

I participated in most of the evidentiary hearings leading up to the adoption of SWRCB Decision 1641 prior to the end of my tenure on the SWRCB in 1999. D-1641, which was intended to effectively implement the rushed Water Quality Plan objectives of 1995, was and is a failure. Its “teeth” were knocked out prior to its subsequent adoption in 2000. It has failed to provide adequate Delta outflow to San Francisco Bay. It has failed to protect the Delta public trust resources and protected fisheries. It failed to obligate major rights holders to actually meet or exceed all of the water quality standards that the Board adopted to guarantee the sustained health of the estuary and its public trust resources. It has failed to guarantee equivalency for the protection of environmental resources as against the needs of export contractors. Moreover, the Petitioners have effectively ignored D-1641 when strict compliance with its mandates became inconvenient due to export demands on the projects.

Petitioners’ assurances to the SWRCB that they will comply with water quality standards in the revised 2006 Water Quality Plan update if their dual tunnels are approved lack sincerity, intellectual honesty, and a successful past track record.

The Department of Water Resources objected unsuccessfully to Del Piero’s testimony and sought to have much of it stricken from the record.

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