C-WIN Slams Delta Tunnel in SWRCB Hearing
Board Member Max Gomberg Explains Why DCP Is Antithetical to the Public Interest
In the first of several planned State Water Resources Control Board hearings, California Water Impact Network board member and senior policy advisor Max Gomberg testified that Governor Newsom’s proposed $20+ billion Delta Conveyance Project – popularly known as the Delta Tunnel – would undermine the public interest and further harm ratepayers, communities, and the environment.
“We are living in a time of crisis, both political and environmental,” said Gomberg. “The impacts of these crises fall disproportionately on marginalized people and places already suffering from the greatest environmental degradation. The Delta Conveyance Project would result in even further harms to them and foreclose other investments and strategies for generations.”
Several proponents for the project – including the Metropolitan Water District of Southern California and the Santa Clara Valley Water District – lauded the DCP, claiming it would ensure greater water security for the populations they serve. But Gomberg eviscerated that argument, demonstrating the project is simply a stalking horse for the appropriation of more public trust water to accommodate powerful and wealthy business interests. “Make no mistake, while DWR and others may frame this as solely an attempt to build more reliable infrastructure and change a point of diversion, it is very much a petition to appropriate more water, especially and alarmingly during dry years, when impacts to communities and the environment are the greatest,” Gomberg observed in his statement.
Gomberg also noted the SWRCB is constrained in its actions by state law and must proceed accordingly when considering approval of the DCP.
“The [Water Board] must allow parties to present evidence on all aspects of the public interest,” Gomberg said, [including] the economic and social impacts to different communities, along with the full suite of authorities the Board possesses to satisfy the public interest and uphold its legal duties.”
The next SWRCB hearing on the DCP is scheduled for March 24, 2025. Witnesses will begin giving testimony in April and hearings will continue through the Summer.
Gomberg’s full comments below.
CONTACT
Max Gomberg
maxgombergca@gmail.com
Policy Comments Made by Max Gomberg at SWRCB Delta Conveyance Project Hearing
February 18, 2025
Good morning State Water Board Hearing Team:
My name is Max Gomberg and I’m here today speaking in a personal capacity based on my 20 years of experience in California water, including a decade working at the State Water Board. In addition, I work with the Shingle Springs Band of Miwok Indians and California Water Impact Network, which are both parties to this proceeding.
I’m going to focus my remarks on a challenge the Administrative Hearings Office faces in this proceeding, which is determining whether the proposed project is in the public interest.
Generally, decisions about the public interest are made by the legislature or by voters. And, when state agencies make public interest decisions, they generally do so via quasi-legislative proceedings. However, in this case we have a quasi-judicial proceeding and statute that clearly directs the Board to reject an application to appropriate water if the Board determines that the appropriation would not conserve the public interest. And make no mistake, while DWR and others may frame this as solely an attempt to build more reliable infrastructure and change a point of diversion, it is very much a petition to appropriate more water, especially and alarmingly during dry years, when impacts to communities and the environment are the greatest.
Thus, the Administrative Hearings Office must decide how to allow for the development of a record regarding the public interest within the confines of a trial format. The AHO has already contemplated time limits for the trial phase, which is understandable given the large number of parties. Nevertheless, ensuring a complete record regarding what constitutes the public interest is of paramount importance. The AHO must allow parties to present evidence on all aspects of the public interest, such as the economic and social impacts to different communities, along with the full suite of authorities the Board has to satisfy the public interest and uphold its legal duties.
The AHO must also determine whether it has the necessary expertise to render judgment about the public interest. Are lawyers who specialize in water rights and staff trained as scientists and engineers sufficiently versed in other disciplines relevant to assessing the public interest? This application is not simply a water rights matter; it has statewide implications that will last for decades or longer.
The AHO should inform the parties whether it intends to hire any technical experts, as authorized by Water Code 1111(c)(1). The AHO should also be forthcoming about whether it will make findings relative to the public interest, or whether it will simply present and discuss the arguments and evidence for the Board members to assess.
Fundamentally, this application is about policy choices. It’s about how we allocate water, who benefits, who pays, what opportunities are opened or foreclosed, and who bears the consequences.
We are living in a time of crisis, both political and environmental. The impacts of these crises fall disproportionately on marginalized people and places already suffering from the greatest environmental degradation. The Delta Conveyance Project would result in even further harms to them and foreclose other investments and strategies for generations.
The AHO’s mandate is to be neutral, fair, and efficient. To fulfill that mandate, the AHO must not limit this proceeding to narrow issues of water rights and construction impacts, as that would bias the hearings in favor of DWR.
In closing, let us all recall one of Ghandi’s famous quotes: “Earth provides enough to satisfy man’s needs, but not every man’s greed.”
Even in the driest years, we have enough water for our needs – for essential domestic use, for the environment, and for a reasonable level of agricultural production. But greed is omnipresent in California water, and the DCP is no exception.
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