The Delta Tunnels/california Waterfix: Part 2 of the Swrcb Water Rights Change Petition and Beyond

• Publication year: 2019
• Author: by Rebecca B. Robbins and Osha R. Meserve

The Delta Tunnels/California WaterFix: Part 2 of the SWRCB Water Rights Change Petition and Beyond

by Rebecca B. Robbins^* and Osha R. Meserve^**

Rebecca B. Robbins

Osha R. Meserve

I. BACKGROUND

The project underlying California WaterFix ("WaterFix" or "Delta Tunnels") has a long history, and was in the works well before the project was dubbed with the "California WaterFix" title in 2015. The Department of Water Resources ("DWR") and the United States Bureau of Reclamation ("Reclamation") (collectively referred to as "Petitioners") began working on the predecessor to WaterFix called the Bay Delta Conservation Plan ("BDCP") in 2006, a project which itself was preceded by separate—ultimately unsuccessful—efforts to address water and species issues in the Delta. The State Water Resources Control Board's ("Water Board") water right hearing was officially kicked off when DWR and Reclamation submitted a "change petition" to the Water Board in 2015. This 2015 petition sought authorization for construction and operation of three new massive new diversions for the State Water Project ("SWP") and Central Valley Project ("CVP") on the Sacramento River.¹

Part 1 of the Water Board's hearing was summarized in the Spring 2017 volume of the Environmental Law News.² During Part 1, testimony was presented over a total of 53 days in 2016 and consisted of evidence from Petitioners and dozens of Protestants³ regarding the question of whether the Delta Tunnels would cause injury to other legal users of water.⁴ Part 2 of the hearing focused on whether the change petition would "unreasonably affect fish and wildlife, or recreational uses of water, or other public trust resources."⁵ Testimony in Part 2 was presented over a total of 50 days in 2018 from Petitioners and dozens of Protestants, many of whom also participated in Part 1 of the hearing.

The WaterFix Petitioners proposed to construct new water diversions that would divert water from the Sacramento River to the state and federal water pumps in the south Delta (referred to as isolated conveyance), rather than allowing that water to flow through the Delta prior to being diverted as under current operations. The two proposed 40-foot in diameter tunnels would run 30 miles in length from the northern Sacramento-San Joaquin Delta. The three new intakes would divert up to 9,000 cubic feet of water per second through the tunnels to the SWP, designed to "deliver nearly 4.2 million acre-feet of water per year" to farms, homes, and industry,⁶ and to the CVP that transports water 450 miles from Lake Shasta to Bakersfield.⁷ These diversions would carry fresh water that currently flows from the Sacramento River through the Delta channels to the Pacific Ocean.

The Delta Tunnels were promoted as helping to alleviate some of the challenges associated with the existing SWP and CVP diversions in the southern Delta, including pumping limitations for endangered species.⁸ In addition, WaterFix proponents argued that the project was necessary to address water supply needs as the climate and hydrology changes. In their petition and evidence for Part 2 of the Water Board hearing, Petitioners claimed to comply with California Water Code section 1701.2(c), which requires the petition to "include information, if any, to which fish and wildlife would be affected by the change and a statement of any measures proposed to be taken for the protection of fish and wildlife in connection with the change."

Protestants in the Water Board hearings included cities, counties, local agencies, landowners, environmental groups, and community members. These Protestants asserted that the Delta Tunnels did not meet the requirements of California Water Code section 1701.2(c) because the plan would further imperil fish, wildlife and would otherwise be contrary to the public interest.

This article discusses some of the evidence presented and issues raised in Part 2 of the Water Board's WaterFix hearing and provides a status update on the fate of the controversial Delta Tunnels project. Though DWR and Reclamation withdrew their joint petition for the two-tunnel project in May 2019, anticipating a potential downsized single-tunnel plan,⁹ the testimony and evidence developed in the Water Board hearing process will inform future proceedings about any new SWP and CVP diversions in the Delta, including the possibility of a downsized single tunnel plan. Future protestants, if any, are likely to argue that any new large diversions in the northern Delta—whether connected to one tunnel or two—would have similar unreasonable effects on beneficial uses, fish, wildlife, other public trust resources, and the public interest.

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II. SWRCB WATERFIX HEARING PART 2

A. Part 2 Issues

Part 2 of the Water Board's water rights change petition hearing began on February 8, 2018, and lasted eight months until October 5, 2018,¹⁰ when the Water Board issued a letter notifying the parties that the remaining hearing days had been cancelled.¹¹ Evidence presented in Part 2 focused on if the petitioned change would "unreasonably affect fish and wildlife, recreational uses of water, and other public trust resources."¹² A sampling of testimony and issues raised in cross examination are described below.

B. Potential Effects on Fish

The Delta Tunnels proposed to divert a large portion of the flow of the Sacramento River,¹³ thus removing that water from the Delta, causing concerns about unreasonable effects on special status fish species, as well as other public trust fishery resources. These concerns included whether the proposed fish screens would adequately prevent fish entrainment (getting caught in the pumps) and impingement (getting caught up against fish screens), and if fish would be able to safely swim past the three intakes for the Delta Tunnels (cumulatively over a mile in length)¹⁴ given changes in hydrology from the diversions. Special status fish species discussed in Part 2 of the Water Board hearing included the winter run and spring run Chinook salmon and the Delta smelt, as well as a variety of other listed and unlisted fish in the Sacramento River and northern Delta.

Petitioners testified that WaterFix would use "Real Time Operations" to protect fish, meaning that the project would rely on "short-term (i.e., daily and weekly) adjustments to . . . water operations"¹⁵ as a protection measure. According to a Supervising Engineer in Water Resources for DWR, Real Time Operations would allow operators to respond to current conditions through collection of daily data, and react to that data in compliance with existing regulatory requirements.¹⁶ Petitioners insisted that daily data collected through the Real Time Operation process would protect endangered fish by allowing DWR and Bureau of Reclamation to "look ahead by evaluating a range of hydraulic possibilities."¹⁷

DWR and Reclamation also presented evidence about how listed fish species would be protected in their proposed project. According a DWR Senior Technical Specialist, the Delta Smelt and Longfin Smelt would be reasonably protected through in-water work activity time limitations, and mitigation measures such as fish screens.¹⁸ Additionally, "approximately 1,750 acres of shallow water habitat mitigation" would be provided "to offset effects related to potential restricted Delta smelt access to upstream spawning habitat."¹⁹ Petitioners argued that screening and operating the intake facilities to salmonid protection standards would protect other fish, such as the Green Sturgeon; the facilities would also be subjected to numerous pre/post construction studies to provide reasonable fish protection.²⁰

Additionally, Petitioners offered testimony explaining how screw traps upriver of the proposed intakes would indicate presence of salmon runs in the Sacramento River. By checking the number of fish caught in the screw trap approximately once a day, Petitioners would determine if a pulse (or large group) of fish are migrating down the river, triggering pulse flow protections.²¹ Petitioners asserted that the Knight's Landing screw trap located approximately 48 miles upriver is "a good indicator of transient abundance presence in the river and therefore whether or not we needed to change operations."²² Moreover, the 2017 incidental take permit ("ITP") issued by the California Department of Fish and Wildlife for the WaterFix Project referenced the possibility of additional fish monitoring installations, possibly closer to the proposed intakes, in the future.²³

Protestants, on the other hand, argued that the massive new fish screens in the Delta would not necessarily function as promised, especially given the tidal influence in the project area, and would not adequately protect either listed or unlisted fish species.²⁴ According to one fisheries expert, small fish are weaker and can fight the currents from the intake facility for only a short period of time (about 60 seconds) before succumbing to the pull of the current and becoming entrained in the intake.²⁵ Additionally, the mere presence of fish screens would increase the pre-dation of listed fish because the screens concentrate the weaker fish in a small area, exposing them to predators located just downstream from the intake facility.²⁶

In addition to inadequate protections for listed species, Protestants expressed their concern that listed species were not the only fish at risk of entrainment in the Delta. Protestants argued that the operation of the Delta Tunnels could lead to the listing of currently unlisted species, such as fall-run salmon, due to decreases in flows and other project effects.²⁷ Protestants also questioned Petitioners' commitment to reducing fish mortality, pointing out that between 2000 and 2011, over 130 million fish were entrained and salvaged at the CVP and SWP diversion facilities in the south Delta.²⁸ Protestants' evidence indicated that with the addition of new diversions in the north Delta, fish mortality would be higher with fish...