From the San Francisco Baykeeper and the California Sportfishing Protection Alliance:
In an overt act of political meddling, Governor Newsom and his deputies are pressuring a judge to retract her evidence-based findings on the Sites Reservoir Project
The evidence shows the multi-billion-dollar Sites Reservoir project cannot operate as proposed without unreasonable harm to rivers, fish, and ecosystems. So says the independent judge assigned by the State Water Board to hear and weigh the evidence.
As a result, many of the state’s political elite have written to the judge to tell her she should change her conclusions, not based on the law or the evidence, but simply so that the Sites Project can divert more water. This reminds us of an old legal aphorism: “If the law is against you, argue the facts. If the facts are against you, argue the law. If both are against you, pound the table and yell.”
In 2023, the Sites Project Authority applied for a new water right to divert water from the Sacramento River to the proposed Sites Reservoir. Dozens of entities challenged the application. The dispute was referred to the State Water Board’s Administrative Hearings Office (“AHO”).
The legislature created the AHO in 2019 to be a “neutral, fair, and efficient forum” to preside over hearings about water rights. It is an impartial, quasi-judicial entity. For two years, the AHO heard arguments from attorneys, experts, and the public. The hearing involved over 1,600 exhibits, 34 days of testimony and cross-examination of 60 witnesses, and a two-day site visit. Everything happened under oath, based on evidence. This March, the AHO issued a draft decision.
Ultimately, the AHO sided with Sites, determining that a water right should be granted. But the draft decision also makes clear that the Sites Authority must do more than it proposes to avoid causing unreasonable harm to the Sacramento River and San Francisco Bay. The Sites Project Authority claims the new dams and reservoir “will provide dramatic benefits to the ecosystem.” According to the AHO, the evidence said otherwise. In short, Sites won but was told it had to operate in ways that better protect the ecosystem and affected communities.
Sites’s response? It says actually protecting fish and wildlife makes the project infeasible. And its Executive Director told the AHO and the Water Board their job is not to be independent, but to issue a decision that “align[s] with the Sites project succeeding.” With taxpayer funds at stake, the goal is not to move forward at any cost, but to make the best use of finite dollars and California’s natural resources.
At the same time, powerful politicians have asked the AHO to abandon neutrality and the information assembled during the hearing and to approve the project as Sites proposes. The head of CalEPA Yana Garcia, the head of California Natural Resources Agency Wade Crowfoot, Senator Alex Padilla, and Governor Newsom, all sent letters to the AHO. These letters repeat the Authority’s talking points and insist that the draft permit’s protections of the environment are inappropriate. Never mind the evidence. Never mind impartiality.
When this happens in Washington DC, Governor Newsom rightly rails against corruption and the decline of independent institutions and expertise. What is happening in Sacramento is no different. We should be just as appalled.
If the project did what it promised, the evidence would have borne it out. But the project is not ecologically beneficial. It is an expensive, unnecessary, and environmentally detrimental water supply project masquerading as “green” infrastructure.
The erosion of government expertise, independence, and impartiality is occurring at an alarming pace. Skepticism in government is increasing. In California, we know better, and we deserve better. We should stand up for civil servants who act as impartial experts and triers of fact. And the Sites Project Authority and its supporters should accept the evidence, not demand it be ignored.
Eric Buescher is the Managing Attorney at San Francisco Baykeeper. Chris Shutes is the Executive Director of California Sportfishing Protection Alliance. San Francisco Baykeeper and California Sportfishing Protection Alliance, including Mr. Buescher and Mr. Shutes, participated in the water rights hearing before the AHO.