Winnemem Wintu Chief Asks Delta Tunnel Amendment Negotiators: When Will Tribal Water Right

Despite the fact that new Delta Tunnel project supported by Governor Gavin Newsom has not been approved, the Department of Water Resources is proceeding forward with negotiations with its water contractors over the State Water Contract Amendment for the Delta Conveyance.

DWR held two meetings, the first on July 24 and the second on July 31. Most of the meeting time on July 24 was not open to the public.

DWR was caucusing in its room as the State Water Contractors were caucusing in their room — and those sessions were not open to the public. Bob Wright, Senior Counsel for Friends of the River, estimated that about 75 people were present at the start of the public session

Before the first meeting on July 24, the public water agencies made a first offer including the setting the Delta tunnel capacity and alignment.

Ann West, of KearnsWest, the same corporation that facilitated the controversial Marine Life Protection Act (MLPA) Initiative to create “marine protected areas” in California, served as the meeting facilitator. Tom McCarthy for Mojave Water Agency, with Steve Arakawa of the Metropolitan Water District at his side, did most of the speaking for the contractors, while DWR attorney Tripp Mizell did most of the speaking for DWR.

During the public comment period, Caleen Sisk, Chief of the Winnemem Wintu Tribe, posed a number of questions and comments to DWR officials and the negotiators, including a question on when tribal water rights, which have not been discussed by the state and federal governments in previous or current Delta Tunnel planning, will be finally discussed.

According to the ground rules for the negotiating sessions, “The comment period is designed for input and not for exchanges with the negotiators, therefore the negotiators will listen to comments without responding,” so the negotiating parties didn't respond.

First, Chief Sisk asked, “How and when will the California Environmental Water Quality Act (CEQA) and AB 52 be considered?”

Assembly Bill 52, signed by Governor Jerry Brown on September 25, 2014, created a new category of environmental resources that must be considered under the California Environmental Quality Act: “tribal cultural resources.”

The legislation imposes requirements for consultation regarding projects that may affect a tribal cultural resource, includes a broad definition of what may be considered to be a tribal cultural resource, and includes a list of recommended mitigation measures.

Second, Chief Sisk asked if a “Delta smelt revitalization plan” would be considered as part of the negotiations.

Third, Sisk said improved water flows are needed for salmon spawners and fry on the Sacramento River and its tributaries.

Fourth, she said they needed to consider discuss an “invasive plants eradication plan” for the Sacramento River.

Fifth, Chief Sisk emphasized, “We need to discuss Tribal Water Rights. When can this be discussed?”

After speaking, Sisk told me about the Tribe’s continued opposition to the Delta Tunnels. “I don't think we need one tunnel to dig up the Delta because we don’t know what we will get when we dig up the Delta,” she noted.

“Our belief is that Mother Earth made the Delta the way it is because it is a fully functional and perfect system. By digging the Delta up, we don’t know how it will end up. You don’t want to ruin a perfect system for an imperfect project. You can’t negotiate a perfect system. Once we dig up the Delta, you can’t return it to its natural state,” stated Sisk.

Deirdre Des Jardins of California Water Research expressed her concerns that the Department of Water Resources has rescinded performance standards for the Delta Tunnel project.

“The public water agencies have made a first offer that includes setting the Delta tunnel capacity and alignment,” said Des Jardins. “But as public water agencies, you should be concerned that the performance standards for the Delta tunnel project have been rescinded. The performance standards included requirements that the facilities be designed to withstand a maximum earthquake in the Delta, and to have a 100 year lifetime.”

She said the deletion of the requirement for a 100 year lifetime is of “major concern” because of the sea level rise forecasted by climate scientists.

“The impact of sea level rise on the proposed location of the North Delta intakes was last evaluated in 2010. The modeling assumed 55 inches of sea level rise, and no failure of levees in the North Delta,” said Des Jardins.

You can read her blog at: cah2oresearch.com/2019/08/06/dwr-rescinds-engineering-performance-standards-for-delta-tunnel/

Other members of the public present for the meeting included Bob Wright, Senior Counsel for Friends of the River; Mike Brodsky, Counsel for the Save the Delta Alliance; and Charlotte Allen for the Sierra Club California.

After the meeting, Wright said, “DWR made it clear at the outset that this process is being done separate and in advance of the CEQA process and the Governor’s water resilience portfolio process.”

“In other words, the process is upside down in terms of doing as much as possible to, before rather than after, learning from the CEQA and water resilience portfolio processes, whether there is any real need for a water tunnel project, and if so, whether the economic costs and/or environmental harms outweigh any benefits from such a project,” said Wright.

“The Contractors seek an agreement in principle that would include a definition of the project to include capacity, and general configuration including alignment, number of intakes, tunnels, pump stations, and so forth. They include language at the end that DWR and the Contractors would retain discretion under CEQA to consider and adopt alternatives, including not going forward with the project. Returning to reality, the Contractors, seek an in advance agreement on what they want prior to even starting the CEQA process and prior to completing the Gov.'s water inventory and assessment, and water resilience portfolio process,” he stated.

Further negotiation meetings are scheduled for August 7, 14, 21, & 26.

The meetings will be held at the DoubleTree by Hilton Hotel, 2001 Point West Way, Sacramento, CA 95818 starting at 10:00 a.m. Parking will be validated. Attendees need to pull a ticket and bring it with them to the meeting for validation.

Photo: Chief Caleen Sisk, Chief of the Winnemem Wintu Tribe, asks negotiators for the Department of Water Resources and the State Water Contractors about when Tribal Water Rights will be discussed. Photo by Dan Bacher.