Tribes, environmental groups slam Delta Tunnel hearing process

Sacramento, Calif. – The struggle by Tribes, environmental organizations, fishing groups and the people of California to stop the construction of the Delta Conveyance Project (DCP), AKA Delta Tunnel, heated up on October 10 with the submission of a formal statement with the State Water Resources Control Board that highlights the “fundamental flaws” with the Delta Conveyance Project (DCP) hearings.

The Delta Tribal Environmental Coalition (DTEC), represented by the Environmental Justice Law and Advocacy Clinic at Yale Law School, along with the California Indian Environmental Alliance, San Francisco Baykeeper, and Golden State Salmon Association, submitted the statement exposing the flaws of the hearings concerning petitions submitted by the Department of Water Resources (DWR) in February 2024. The petitions ask the State Water Board to modify water rights permits issued in 1972, allowing DWR to use them now to construct and operate the DCP.

“In August, DWR also quietly added a request to extend the construction deadline for water storage and conveyance facilities under those permits by fifty-five years, from 2000 to 2055,” the DTEC said in a press release.

“The statement by DTEC and its allies draws focus to DWR’s request for special treatment, as the permits DWR is requesting to use for the DCP expired decades ago and cannot be resurrected,” they explained. “The group calls on the State Water Board to hold DWR to the same policies and processes as other water users, requiring them to submit an application for a new water right – allowing the public to provide comments and the State Water Board to sufficiently analyze whether there is sufficient water available for this unprecedented water export project,”

In case you’re not familiar with it, the Delta Conveyance Project is a proposed 40-foot-wide underground tunnel with the capacity to siphon 6,000 cubic feet per second of water—the equivalent of roughly 245 Olympic swimming pools every hour—from the Sacramento River in the North Delta, sending it directly to corporate agribusiness water users in the San Joaquin Valley.

The construction of the Delta Tunnel will only hasten the extinction of Central Valley salmon and steelhead and imperiled Delta fish species, according to scientists and fish advocates.

“Meanwhile, the State Water Board’s continued delay in updating water quality standards is worsening conditions in the Bay-Delta. The DCP would reduce flows to even more dangerously low levels, adding another chapter to the state's history of trammeling on the rights of Delta Tribes, overlooking the interests of disadvantaged communities, and sacrificing the ecological integrity of the Bay-Delta for the profits of Big Ag,” the groups said.

The project comes at a time when imperiled Central Valley salmon populations and Delta smelt, longfin smelt and other fish species have collapsed, due to massive water exports to corporate agribusiness and Southern California water agencies, combined with the impacts of toxics, pollution and invasive species. No Delta smelt, once the most abundant fish species in the Sacramento-San Joaquin River Delta, have been caught for six years in the California Department of Fish and Wildlife’s Fall Midwater Trawl Survey.

In addition, a weekly survey by the US Fish and Wildlife Service targeting Delta smelt caught only one smelt this summer. “A late April IEP juvenile fish survey (the 20-mm Survey) caught several juvenile Delta smelt in the same area,” noted scientist Tom Cannon in his blog on the California Sportfishing Protection Alliance website.

The State Water Board is currently under investigation by the U.S. Environmental Protection Agency (EPA) for discriminating against Delta Tribes and disadvantaged communities in its mismanagement of Bay-Delta water quality controls.

The coalition urges the State Water Board to “reject DWR’s petitions and require the completion of the Bay-Delta Plan and the conclusion of EPA’s investigations into Board discrimination before taking further action.”

A broad group of Bay-Delta cities and counties, environmental organizations, and other stakeholders have submitted statements to the State Water Board expressing similar concerns with the DCP proceedings. The State Water Board hearings office will consider the statements at a pre-hearing conference on October 17, the groups noted.

Representatives of the Tribes and environmental groups commented about the Department of Water Resource’s continuing campaign to build the Delta Tunnel at the expense of tribal rights, fish populations and the public trust.

Gary Mulcahy, Government Liaison for the Winnemem Wintu Tribe said, “As the Tribe has stated before, the Department of Water Resources attempt to extend expired water rights permits by a significant 55 years is unlawful. DWR has wasted public money now for 24 years on the basis of an expired permit and a version of a zombie project rejected by the public since 1982. DWR can no longer skirt the law and must go through the actual process of filing for a new water right permit.”

Malissa Tayaba, Vice Chair for the Shingle Springs Band of Miwok Indians, stated,
"While tribes continue to be impacted by unhealthy rivers and watersheds, the Department of Water Resources is trying to rush forward with a tunnel project that would divert more water out of our rivers and Delta eco-cultural systems. We need a transparent and fair process that prioritizes our tribes, our rivers, and cultural landscapes. We should not allow DWR to play by a different set of rules that further harms us."

Naji Thompson, certified student attorney with the Yale Environmental Justice Law and Advocacy Clinic, said the Board must first resolve “critical threshold questions about its jurisdiction and the rights and interests of Bay-Delta Tribes and communities.”

“It is essential that the Board rejects DWR’s attempts to sidestep procedural safeguards, which are designed to protect the voices of those who will be forced to live with the long-term impacts of the DCP’s construction and operations for generations to come,” Thompson argued.

“The approval of DWR's petition will force historically marginalized Bay-Delta communities to continue to endure generations of ecosystem disruption, an unjustifiable act, and proceeds to neglect the voices of Tribal and marginalized communities,” said Gloria Alonso Cruz, Environmental Justice Advocacy Coordinator for Little Manila Rising. "The State Water Board has the authority to hold DWR accountable and prioritize protections for communities and the Bay-Delta environment."

The statement was submitted during the second year in a row of a complete closure of recreational and commercial salmon fishing on the ocean and recreational salmon fishing in California rivers, due to the collapse of Sacramento River and Klamath River fall-run Chinook salmon populations.

It is likely that the salmon season will be closed again in 2025. The return of fall-run Chinook salmon at the Coleman National Fish Hatchery on Battle Creek, a tributary of the Sacramento River, is apparently at an all-time low this year. While the facility’s normal production is 12 million juvenile fall Chinook salmon, this year hatchery staff have collected only 5.4 million eggs at the hatchery.

"Extending water permits for 55 years isn’t a 'minor change'—it’s a major blow to California’s already struggling salmon populations,” emphasized Scott Artis, Executive Director for the Golden State Salmon Association. “The Delta Conveyance Project will devastate the fishing industry and Bay-Delta watershed that communities and tens of thousands of people and businesses rely on, all while bending the rules for big water interests.”

Meanwhile, harmful algae blooms continue to proliferate on degraded Delta waterways.

“DWR is requesting the Board bypass proper review to extend expired permits without standing,” reported Cintia Cortez, Policy Manager for Restore the Delta. “Yet, it's been two years since Delta communities, that continue to live with degraded waterways and toxic algae, requested relief from the state. By continuing this process, the Board prioritizes serving special interests and gives DWR cover to please the Governor."

"The State Board's processes matter,” concluded Eric Buescher, Managing Attorney for the San Francisco Bay Keeper. “How the Board handles this water rights proceeding will have impacts on the ecosystems and people who depend on a healthy San Francisco Bay, Delta, and watershed. The State Board needs to act fairly, justly, and quickly to address the crisis in the Delta before it considers whether to grant DWR the authority to further degrade conditions throughout the watershed over the next five decades."

In related Delta Tunnel News, the Delta Stewardship Council last Friday reported that four appeals had been filed for the Department of Water Resources (DWR) certification of consistency with the Delta Plan for the geotechnical activities associated with the Delta Conveyance Project. The draft certification only concerns certain geotechnical activities related to data collection (cone penetration tests, soil borings, and water quality sampling within soil borings), and not for the project in its entirety.

Despite widespread opposition to the Delta Tunnel by Tribes, fishing groups, conservation NGOs, environmental justice advocates, family farmers, boating group, elected officials, the five Delta Counties and Southern California water ratepayers, the Newsom administration keeps moving forward with the environmentally destructive project. Promoted by the Arnold Schwarzenegger, Jerry Brown and Gavin Newsom administrations, the salmon-killing water diversion plan, now called the Delta Conveyance Project, keeps getting resurrected like a zombie from the dead by politicians completely beholden to corporate agribusiness oligarchs.