State Water Board denies dismissal request for Delta Tunnels petition

State Water Board denies dismissal request for Delta Tunnels petition

by Dan Bacher

The California State Water Resources Control Board today denied the request by a coalition of environmental, fishing and family farming groups to dismiss the joint water right change petition from the Department of Water Resources (DWR) and the U.S. Department of Interior for the California WaterFix Project, the new name for Governor Jerry Brown’s Delta Tunnels Plan.

The Board granted the 60 day extension requested by DWR and the Bureau of Reclamation for their permit needed to divert water from the Sacramento River under the plan to build two massive tunnels under the Sacramento-San Joaquin River Delta.

“The request to dismiss the petition is denied,” wrote Felicia Marcus and Tam M. Doduc, State Water Board Members and California WaterFix Co-Hearing Officers. “Parties raised similar concerns about petition completeness during the pre-hearing conference, and this issue was addressed in our February 11, 2016 ruling. Rather than supplement the petition, the petitioners are expected to provide more information concerning project operations and potential effects on legal users of water during the petitioners’ case in chief.”

Responding to the ruling, Bill Jennings, Executive Director of the California Sportfishing Protection Alliance (CSPA), said, “It’s not surprising — it’s what we expected. The hearing process is delayed, but will go on.”

“The ruling on our our request to dismiss the petition doesn’t surprise me,” confirmed Mike Jackson, Northern California activist and water lawyer and Secretary of the California Water Impact Network (C-WIN). “I thought the ruling was incorrect, but we will take that up after the hearing in court.”

The groups filing the request to dismiss are the Planning and Conservation League, California Sportfishing Protection Alliance, Restore the Delta, California Water Impact Network, Environmental Justice Coalition for Water, Environmental Water Caucus, Sierra Club California, Friends of the River, and Local Agencies of the North Delta.

The complete ruling letter is available here: http://www.waterboards.ca.gov/waterrights/water_issues/programs/bay_delta/california_waterfix/docs/20160425_cwf_ruling.pdf

Marcus and Doduc also denied the motion by the San Luis & Delta-Mendota Water Authority to disqualify both of them as hearing officers and to appoint new hearing officers “because we have demonstrated bias by predetermining an issue concerning the ‘appropriate Delta flow criteria’ that must be included as a condition of any approval of the water right change petition for the WaterFix project pursuant to the Delta Reform Act.”

“In summary, the facts presented by SLDMWA and SJTA are not grounds for disqualification,” the hearing officers wrote. “We are confident that we can evaluate the factual and legal arguments in this proceeding impartially, and reach a fair and reasonable decision based on the evidence in the record,”

The hearing officers also denied the Metropolitan Water District of Southern California’s Request to participate as a party in the hearing.

“MWD’s argument that it could be significantly impacted by the outcome of this proceeding may have merit, but it does not excuse the failure to file an NOI indicating MWD’s intent to participate as a party by the January 5, 2016 deadline. In addition, MWD’s interests will be represented to some extent by DWR and the State Water Contractors,” said Marcus and Doduc.

Mike Jackson said he thought the rulings denying the SLDMWA’s motion to disqualify Marcus and Doduc and denying MWD’s request to participate in the proceeding were “correct.”

In addition to ruling on requests and motions submitted recently by multiple parties regarding the Board’s hearing, the letter also addresses the revised “Notices of Intent to Appear” received by the State Water Board on or before March 16, 2016, as required in their February 11, 2016 ruling letter.

The ruling was issued at a time when the Governor Brown’s Delta Tunnels Plan is in a state of complete chaos. The Department of Interior’s Inspector General has opened an investigation into the possible illegal use of millions of dollars by the California Department of Water Resources in preparing the Environmental Impact Statement (EIS) for the Delta Tunnels Plan. (http://www.counterpunch.org/2016/04/12/feds-to-probe-misuse-of-state-funds-for-jerry-browns-delta-tunnels/)