Tunnels Fight Changes Venue

Lengthy Hearings in 2016; Opponents Slam Process Article by Alex Breitler January 3, 2016 http://www.recordnet.com/article/20160103/NEWS/160109986/101094/A_NEWS

Ten years after the first seeds were planted for the proposed twin tunnels, the battle shifts to a new arena in 2016 — a critical year for the controversial project.

A small state agency will soon begin the daunting process of deciding whether to change the water rights for the state and federal water projects, allowing them to divert some of their water from the Sacramento River and bypass the Delta for the first time.

The water rights must be changed before a shovelful of earth can be turned.

But it won’t be simple. Months of hearings are expected, starting in April. The hearings will feature sworn testimony from witnesses in a setting almost as formal as a courtroom.

“You’re going to have so many people involved — it’ll be very, very complicated. The lawyers will go crazy on this thing,” said Craig Wilson, an attorney retired from the State Water Resources Control Board, which will oversee the hearings.

Opponents are expected to challenge the process, arguing that the water rights cannot be changed until the state has completed a separate, long-overdue review of the Delta’s water quality and water flow needs. They will argue that it doesn’t make sense to put $15 billion pipes in the ground before knowing how much water they can safely divert from the sensitive estuary.

Supporters will say there is an urgent need to start the process now.

'Much more complex'

In California, you can’t simply wake up one morning and decide you will take your water from a different location. You have to ask the state water board, to ensure there is no harm to any other water user or to the environment.

The board routinely handles such requests — for example, from a farmer who wants to pump the same amount of water from a different stream. But because of the sheer size of the water projects, which deliver millions of acre-feet of water each year to farms and cities as far south as San Diego, the latest request will be anything but routine.

“This one is much more complex,” said Diane Riddle, an environmental program manager with the water board.

Today, the water diverted by the state and federal projects flows through the Delta first, to giant pumps near Tracy. From there it is sent south in aqueducts and canals.

As the water moves through the Delta, some channels flow backward toward the pumps, pulling in threatened fish and disrupting the ecosystem. The tunnels are supposed to reduce that problem by taking some of the water directly from the Sacramento, which could also safeguard a share of the state’s water supply should Delta levees fail.

The tunnels are a spin-off of the old peripheral canal, which voters defeated in a 1982 referendum. The concept was revived by the Schwarzenegger administration in 2006.

It took a decade to write the tunnels plan. A final version is expected this year.

Cart before the horse?

Now, enter stage right the state water board, which oversees water rights and — until the drought — stayed mostly under the radar in California. The board is supposed to be a kind of watchdog, balancing the diverse needs for water among cities, farms and the environment.

To grant the projects’ request to take water directly from the Sacramento River, the board will have to determine that other water users will not be harmed, and that fish and wildlife will be protected. Delta farmers are sure to argue that removing freshwater before it reaches the estuary will, indeed, harm water quality and threaten their livelihoods.

Here's where it gets sticky: While considering the water rights questions, the board will simultaneously begin a separate, broader review of Delta flow standards. The standards are supposed to be reviewed every three years but haven’t been comprehensively updated since 1995. Fish species have crashed under the current rules, and scientists believe those rules to be inadequate for the Delta's environment.

The flows study should come first, before tunnels water rights are decided, opponents say. If the tunnels come first, it is likely that political pressure will skew any new flow rules in favor of water exporters, those opponents say.

“No state agency is going to approve a project and then gut it a couple of years down the road after it’s started,” said Bill Jennings of Stockton, with the environmental group California Sportfishing Protection Alliance. “They’re not going to give the go-ahead and then stab it in the back.”

“In short, Delta water quality policy should come before plumbing decisions,” Jennings’ group and other opponents, including Stockton-based Restore the Delta, penned in a letter to the state board.

Risk factor

Even if the plumbing decision does come first, the Delta won't be without protection, state officials say.

Legislation approved in 2009 requires “appropriate” flow standards before the water rights are changed. Temporary rules, at least, would be required until the more comprehensive flow study is done, perhaps in 2018, Riddle said.

A decision one way or another on the tunnels won’t handcuff the board on its flow study down the road, she said. It’s possible that study could determine that less water will be available for the tunnels than expected.

“That’s a risk those that are financing the project will have to consider,” Riddle said. “That’s always a risk from any water development project, that you may not get the amount of water you expect to get.”

Nancy Vogel, a spokeswoman for the state’s Natural Resources Agency, said it is important to start the process of changing the water rights now, because the flow study could take years.

Vogel acknowledged the risk in proceeding before knowing exactly how much water will actually be available for diversion through the tunnels. “But you have to think of the flip side,” she said. “There’s a huge amount of risk involved in the status quo. If we do nothing about the reverse flows (in the Delta), we can assume the species populations are going to continue to deteriorate, and we can assume more regulatory restrictions on the projects.”

Even with the tunnels, the possibility of such restrictions is a gamble for water exporters, said Jerry Meral, an environmentalist and tunnels supporter who formally served in the Brown administration as the governor's point man on water issues.

Because the tunnels plan no longer includes 50-year guarantees for water deliveries, the larger risk for the projects comes likely not from any standards the water board will impose in the future, but from the possibility that fish and wildlife agencies could put the clamp down on water exports if fish aren't faring well.

“(Tunnels proponents) are just betting that the construction and operation of the project will benefit those species, or at least not harm them further,” Meral said. “They’re willing, apparently, to take that risk.”

Coming soon

The water board’s hearings are scheduled to begin in earnest on April 7.

Three months ahead of that date, a written notice explaining the process already makes it obvious just how complex this will be.

“I got a headache,” quipped Wilson, the former water board attorney, “just reading the thing.”

— Contact reporter Alex Breitler at (209) 546-8295 or abreitler@recordnet.com. Follow him atrecordnet.com/breitlerblog and on Twitter @alexbreitler.