After more than three years, 104 days of testimony, and over twenty-four thousand pages of hearing transcripts, the hearing before the State Water Resources Control Board (State Board) on the proposal to construct two tunnels to convey water under the Delta (aka California WaterFix) is almost completed. Probably, that is: there could be more if the project changes again to a degree that requires additional testimony and/or environmental review.
The hearing before the State Board responds to the August 26, 2015 joint petition of the California Department of Water Resources (DWR) and the U.S. Bureau of Reclamation (Bureau) to add points of diversion to their existing water rights. Adding points of diversion would allow DWR and the Bureau to divert water at three tunnel intakes between Clarksburg and Courtland on the Sacramento River south of Sacramento. From there, water would move in two tunnels under the Delta to a new “forebay” near Tracy, next to the existing Clifton Court Forebay from which DWR draws diverts water from the south Delta. From the new forebay, water would move to DWR and the Bureau’s existing pumping plants at the heads of the California Aqueduct and the Delta-Mendota Canal.
In 2015, DWR and the Bureau were adamant that the State Board should schedule and commence a hearing right away. Despite comment letters opposing such hearing on the grounds it was premature, the State Board issued a hearing notice on October 30, 2015. However, CEQA and NEPA environmental review for the “WaterFix” project was still incomplete when the hearing began. Essential elements of the project were unclear. Thus, the State Board’s Hearing Officers required DWR and the Bureau to present their first round of written testimony prior to other parties to the proceeding. (The State Board’s web page for the WaterFix water right hearing is here.)
For CSPA, response began with a water rights protest of the petitions, jointly filed with CSPA’s partners throughout the WaterFix hearing, the California Water Impact Network (C-WIN) and AquAlliance. CSPA et al timely filed their joint protest on January 5, 2016, and thus joined many other parties as “protestants” in the proceeding.
After the initial rush to start a hearing, DWR and the Bureau asked for time extensions, and actual hearings did not start until July 2016. As the hearing unfolded over the next two years, DWR and the Bureau continued to change the project description, in some cases making previous testimony obsolete because that testimony addressed older versions of the project. Even after testimony that took place over two years, DWR, on July 17, 2018, released a Supplemental Draft Environmental Impact Report (EIR: CEQA)/Draft Environmental Impact Statement (EIS: NEPA) to analyze additional changes to the project. The Bureau issued a Notice of Availability under NEPA on September 20, 2018. The NEPA comment period closed as recently as November 5, 2018.
A water rights change petition requires the State Board to determine whether the requested change constitutes an application for a new water right. It also requires the State Board to determine whether the change would “injure” other legal users of water, for example by reducing the quantity of available water or worsening the water quality. The Hearing Officers set these issues up as Part 1 of the hearing. As the owner of a small holding with riparian water rights in Collinsville near the mouth of the Sacramento River in Solano County, CSPA participated in Part 1 of the hearing.
A water rights change petition also requires that State Board to determine whether the proposed change will cause unreasonable impacts to fish and wildlife, or to other public trust resources. It requires the State Board to find that the proposed change is in the public interest. In addition, the Delta Reform Act of 2009 added special requirements to the State Board’s consideration of the WaterFix petitions, including the need for the State Board to include “appropriate Delta flow criteria” if the State Board were to grant the petitions. The Hearing Officers set these issues up as Part 2 of the hearing. Needless to say, CSPA participated in Part 2 of the hearing.
Each Part of the hearing consisted of three sub-parts. First, each party to the hearing that so desired presented a written “case-in-chief,” consisting of written testimony by expert and other witnesses and supporting exhibits. In sequence, each witness summarized his or her testimony orally, and was then cross-examined by an attorney or other person representing each of the parties who wished to conduct cross-examination. Once each case-in-chief witness for each participating party presented testimony and stood for cross, the case-in-chief for Part 1 concluded. The hearing then moved to Part 1 rebuttal, where parties had the right to present witnesses to rebut (contradict) testimony presented in Part 1 cases-in-chief. Once oral summary and cross-examination for rebuttal concluded, the hearing moved to “sur-rebuttal,” or rebuttal of Part 1 rebuttal testimony.
Following the conclusion of Part 1 on July 17, 2017, parties had the opportunity to submit a closing brief, or summary of its legal and factual arguments. Most entities, including CSPA, elected to wait to brief Part 1 issues in a single brief, together with Part 2 issues.
Part 2 hearings began on February 8, 2018, and followed the same sequence as Part 1: cases-in chief, rebuttal, and sur-rebuttal. Sur-rebuttal for Part 2 concluded on October 1, 2018.
The summary above does not convey the dozens of written procedural motions, objections to testimony, and updates to exhibit lists that peppered the inboxes of all the people on the WaterFix service list throughout the proceeding.
In CSPA’s testimony in Part 1 of the hearing, CSPA’s Executive Director Bill Jennings provided testimony on water quality, adaptive management, modeling of water quality and quantity, and the process for balancing beneficial uses of water. Water Quality expert Dr. G. Fred Lee testified on impacts to water quality that WaterFix would have by reducing fresh water inflow from the Sacramento River to specific points in the central Delta. Consulting biologist Tom Cannon testified that the inadequacy of existing flow and water quality protections in the Delta requires the State Board to evaluate WaterFix under more stringent requirements. Water Rights Advocate Chris Shutes testified on existing and likely future reservoir operations, the irregularities of DWR and the Bureau’s use of their water rights, how modeling reservoir operations does not create a requirement to carry out those operations in practice, and that the WaterFix project description lacked essential elements that obstructed clear analysis. CSPA’s Part 1 rebuttal witness, former State Board member and attorney Marc Del Piero, testified that implementation of WaterFix would create a new water right, injure other legal users of water, and could not rely on compliance with existing water quality standards to prove lack of injury. (The State Board’s web page for all of CSPA’s testimony and exhibits is here. Be sure to scroll down.)
For Part 2 of the hearing, CSPA provided ten witnesses.
Bill Jennings discussed the disastrous decline of Delta and upstream fish species, particularly under the existing regulations that DWR and the Bureau propose as the benchmark for measuring WaterFix; the failure of the State Board to protect fish, both by inadequate rule and lack of enforcement; the failure of fish agencies to protect fish; the failure of adaptive management to protect fish; the need for the State Board to apply what it knows to require flows that will protect fish; and the need for the State Board to show its work in a formal balancing of the public trust with other uses of water.
Tom Cannon analyzed broad and specific impacts of WaterFix on fish in the Delta and upstream of the Delta. Tom’s analysis went species by species, season by season, water year type by water year type, and location by location.
Chris Shutes discussed the importance and the results of the State Board’s 2010 Delta Flow Criteria Report and presented some of the supporting documents submitted by fish agencies during the proceeding that led up to that report (since none of the fish agencies were parties to the WaterFix hearing). He also proposed carryover storage requirements for each of DWR and the Bureau’s major reservoirs north of the Delta (Trinity, Shasta, Oroville and Folsom). He emphasized the need for the State Board to include enforceable conditions in any permits it might issue for WaterFix, in contrast to conditions that rely on adaptive management or on processes implemented by entities other than the State Board.
Marc Del Piero testified that the State Board needs to conduct a formal public trust balancing for the WaterFix project, similar to the process the State Board used in the Mono Lake decision when Marc was on the State Board. He testified that WaterFix is not in the public interest, is a request for a new water right, and has not adequately identified the source of water that the tunnels would divert. He also stated that DWR conflated the legal standard for “injury” under the water code with the CEQA standard for identifying and mitigating impacts.
Felix Smith, biologist and advocate formerly with the U.S. Fish and Wildlife Service, discussed the State Board’s procedural responsibilities under the Public Trust Doctrine and substantive responsibilities to protect Delta fisheries.
Witnesses Jerry Neuburger, Dave Hurley, Dan Bacher, and Dr. Dave Fries each testified on the effects WaterFix would have on recreation and the Delta’s recreation economy.
Witness Tom Stokely testified on the effects WaterFix would have on Trinity Reservoir and the Trinity River, on the operation and fisheries of the Sacramento River downstream of Shasta Dam, and on how WaterFix would perpetuate the irrigation of the west side of the San Joaquin Valley, whose runoff pollutes the Delta.
In Part 2 rebuttal, Tom Cannon provided testimony to contest the claims of DWR’s fisheries witnesses on the alleged benefits WaterFix would have for fish. Dave Fries contested DWR’s testimony on impacts to birds, recreation, barge traffic, and transportation. Chris Shutes presented a series of draft proposed permit terms for WaterFix should the State Board grant DWR and the Bureau’s petitions. In part, these permit terms rebutted DWR’s presumption throughout the hearing that compliance with current Delta water quality and flow requirements would make WaterFix “reasonably protective” of fish. It also included conditions that existing State Board regulations don’t even address, like carryover storage in reservoirs. Finally, it recommended stricter requirements related to the proposed new North Delta Diversion, like higher flow requirements.
CSPA’s attorney Mike Jackson was present at the vast majority of the 104 hearing days. He cross-examined dozens of witnesses, raised objections, made motions, and represented CSPA witnesses as they made oral summaries and stood for cross-examination. CSPA’s Chris Shutes also cross-examined witnesses for DWR, the Bureau, and other parties. CSPA and Deirdre Des Jardins with California Water Research were physically present at far more hearing days than representatives for any other environmental or fishing groups.
Potential changes to the project that could require additional environmental review and/or days of hearing are changes in the level of participation of the Bureau of Reclamation in the project and a major reconfiguration of the project, such as reducing the project to a single tunnel.
Otherwise, CSPA expects that once DWR certifies its supplemental EIR and the Bureau issues its final EIS, the Hearing Officers will issue a ruling concerning the length and due date for closing briefs that summarize each party’s legal and factual arguments about the project, the hearing, and the testimony. After more than three arduous years and hundreds of thousands of pages of documents, this should be the final step before a decision by the State Board.
CSPA is deeply appreciative of the efforts of all the people who contributed to the enormous efforts of CSPA and its allies the WaterFix hearings, especially witnesses for CSPA and its Group 31 partners C-WIN and AquAlliance. We also extend our heartfelt thanks to all the people from other parties who worked with CSPA throughout the hearing. CSPA is extremely grateful to all these hearing participants for their hard work, their perseverance, their competence, and their generosity.