California Waterfix: a Snapshot of the Swrcb Water Rights Change Hearings

• Jurisdiction: California,United States
• Citation: Vol. 26 No. 1
• Publication year: 2017
• Author: by Austin C. Cho
• topic: Environmental Law,Public Sector Law

California WaterFix: A Snapshot of the SWRCB Water Rights Change Hearings

by Austin C. Cho^*

I. INTRODUCTION

After five parched years, substantial winter rains and Sierra snowpack have brought California a long-sought reprieve from drought, though not without presenting a new set of challenges. In February, nearly 200,000 residents below an overflowing Lake Oroville were forced to temporarily evacuate their homes due to the reservoir's inundated and damaged spillways.¹ Increased river flows have resulted in some of the state's floodplain levees showing signs of strain and threat of breach.² Yet despite the recent deluge, portions of the state remain relatively dry and many groundwater basins will take years to recover from overpumping. While Governor Brown has finally lifted the state's drought emergency for most regions, he cautions that "the next drought could be around the corner."³

These varying extreme conditions have been cited as a justification for the California WaterFix project ("WaterFix" or "Delta Tunnels"), new water infrastructure proposed by the California Department of Water Resources ("DWR") and United States Bureau of Reclamation ("collectively "Petitioners") to divert water from the northern Sacramento-San Joaquin River Delta just south of Sacramento. Southern Delta diversions for DWR's State Water Project ("SWP") and Reclamation's Central Valley Project ("CVP") would also be retained. The Petitioners say that WaterFix would improve California's water infrastructure system and increase supply reliability for areas that use water exported from the Delta. The plan calls for the construction of three north Delta intakes, each capable of diverting 9,000 cubic feet per second, feeding into two 40-foot-wide, 30-mile-long tunnels. Currently, fresh water inflows from the Sacramento River wend their way through the complex of Delta channels towards the Bay Delta estuary and, ultimately, the Pacific Ocean. The tunnels would divert a portion of that water directly to the State and Federal water projects' existing export facilities in the south Delta. Proponents say these new diversions would provide needed flexibility to divert water from the northern Delta at times that conditions for diversion in the southern Delta are not ideal due to endangered species protections, water quality requirements, and other constraints.

The Delta Tunnels are backed by Governor Brown, but face strong local and environmental opposition. Opponents are concerned that the project would siphon fresh water flows from the lower Sacramento River for the benefit of export interests at the expense of the Delta and the environment. As no set operations plan is being proposed, many are concerned that the Delta Tunnels are a water grab, and that water will exported from the northern Delta creating permanent drought conditions. Proponents of the project argue that the existing means of diverting water from the Delta are unsustainable for fish and humans alike and that major change is needed. While many would agree that California's current water system is not perfect, few agree on what (if any) major changes are needed to how water is diverted from the Delta.

This article provides a brief summary and status update of the ongoing administrative proceedings before the California State Water Resources Control Board ("Water Board"), in which the Petitioners seek to modify their water permits in order to allow construction of the WaterFix intake facilities and tunnels. Before it may approve the petition, the Water Board must find that Petitioners have satisfied their burden of proof in demonstrating that the changes will not cause injury to other legal users of water.⁴ In addition to the "no injury" rule, the Water Board must find that the project as approved will not unreasonably adversely impact fish, wildlife, public interest, or the Public Trust.⁵

The hearing parties include counties, cities, water contractors, local agencies, environmental groups, landowners, and community members, all of whom have organized to participate, voice their concerns, and protect their respective interests. The WaterFix Change Petition hearing has been described as "the largest and most complex in the state's history," in large part because of the number of participants, the volume of evidence in the administrative record, and the widespread implications the Water Board's decision will have on all Californians.⁶

II. THE DELTA AS PLACE

The Sacramento-San Joaquin Delta is intrinsically tied to California's history. In the same year California became a state, Congress passed the Swamp Land Act of 1850,⁷authorizing the transfer of title for wetlands to private owners on the condition that the lands be reclaimed. Large portions of the Sacramento-San Joaquin Delta were subsequently transformed from a tidal freshwater marsh and other wetlands into fertile farmland by the late 1800s.⁸ The Delta is now the largest continuous swath of Prime Farmland in the state, and its farmers rely on some of the most senior riparian and pre-1914 water rights in the state due to the early establishment of farming in this agriculturally productive area.⁹

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As the nexus for two of the state's largest rivers, the Delta provides at least a portion of the freshwater supply for two-thirds of California's population and a large percentage of the state's irrigated acreage.¹⁰ The Delta is where California's two major water infrastructure projects—the CVP and SWP—export water to meet contractual commitments to contractors throughout the state. The Delta is also host to a number of threatened and endangered fish and wildlife species including the 3-inch Delta smelt, part of the migratory corridor for anadromous fish such as the winter run Chinook salmon, and a critical stopping point for migratory birds on the Pacific Flyway.¹¹

The Delta is tidally influenced and management of salinity encroachment and freshwater flows is crucial to both the ecological health of the Delta as well as its beneficial water uses. The Bay-Delta Water Quality Control Plan, as implemented by Water Rights Decision 1641 ("D-1641"), requires the CVP and SWP to meet certain water quality standards in the Delta as established by the Water Board.¹² Additionally, DWR and Reclamation are obligated to operate their respective projects pursuant to Biological Opinions issued by the United States Fish and Wildlife Service and the National Marine Fisheries Service to protect species covered by the Endangered Species Act.¹³ Biological Opinions from 2008¹⁴ and 2009¹⁵ require DWR and Reclamation to restore approximately 28,000 acres of habitat to mitigate the impacts of their existing project operations in the south Delta.¹⁶

The Sacramento-San Joaquin Delta Reform Act of 2009 requires the imposition of appropriate Delta flow criteria and defines California's co-equal water policy goals of providing a reliable water supply for the state and protecting the Delta ecosystem in furtherance of the "Delta as an evolving place."¹⁷ The 2016 California Water Action Plan states, California's "water management system is currently unable to satisfactorily meet both ecological and human needs" and provides that "[t]o be sustainable, solutions must strike a balance between the need to provide for public health and safety[,] protect the environment, and support a stable California economy."¹⁸

According to its advocates, the new diversions proposed under WaterFix stem from the desire to improve and update the existing Delta conveyance systems, while preserving the vulnerable species populations that rely on Delta waters. DWR and Reclamation began working on the predecessor to WaterFix, the Bay Delta Conservation Plan ("BDCP"), in 2006. The BDCP included both the construction of the Delta Tunnels and measures aimed at improving the ecological health of the Delta estuary through a 50-year federal Habitat Conservation Plan ("HCP") and state Natural Communities Conservation Plan ("NCCP"). To this end, the BDCP included restoration of more than 100,000 acres of wetland and wildlife habitat.¹⁹ The Draft Environmental Impact Report/Environmental Impact Statement ("DEIR/EIS") for the BDCP was released for public comment in December 2013.²⁰

While the restoration goals of the BDCP were lauded by some, the effectiveness, feasibility and appropriateness of that scale of land use changes on productive, and largely privately-owned, farmland received significant public scrutiny.²¹ After nearly 10 years of developing the BDCP, the agencies retooled their approach in 2015, abandoning the HCP/NCCP and issuing a Recirculated Draft EIR/Supplemental Draft EIS ("RDEIR/SDEIS") under the "WaterFix" moniker. DWR and Reclamation removed the habitat restoration components in light of the uncertainties posed by a 50-year conservation plan, but stated they still aim to satisfy the "co-equal goals" of providing a more reliable water supply along with protecting, restoring, and enhancing the Delta ecosystem. These goals are now being advanced under a separate effort, dubbed "EcoRestore," which reduces the scope of restoration to 30,000 acres—about 28,000 acres of which was already required under the 2008 and 2009 Biological Opinions—and will be further defined and pursued at an unspecified later date.²²

III. PETITION FOR CHANGE HEARING23

On August 26, 2015, DWR and Reclamation submitted a petition to the Water Board requesting to add three points of diversion to existing water right permits for the tunnels proposed as part of the WaterFix Project.²⁴ The three new intakes, each with a capacity of 3,000 cubic feet per second, are proposed to be constructed along the east bank of the Sacramento River to purportedly provide more operational flexibility for the SWP and CVP to move water to the Westside San Joaquin Valley, to Kern County and Southern California.²⁵ Under WaterFix, the Petitioners would be permitted to use the new northern diversion in conjunction with the existing SWP and...