Delta tunnels EIR certified despite opposition

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By Vicky Boyd

The California Department of Water Resources recently certified the environmental impact report for the massive Delta tunnel project, saying it complied with state law and setting permitting in motion.

Critics – ranging from agricultural to environmental groups and native tribes – have called the tunnel a “boondoggle” and a “Delta killer.” They also say it’s based on outdated 20th century thinking of simply moving water from the north to the south without adding any new water to the system. In the process, the tunnel will cause irreparable harm to the fragile Delta, according to critics.

But supporters, comprising 17 water agencies mostly south of the Delta, contend it’s needed to ensure reliability in the face of global warming, rising sea levels, potential earthquakes, Delta subsidence and fishery decline.

San Joaquin Farm Bureau First Vice President Les Strojan said that while he was disappointed with the state certifying the document, it wasn’t surprising.

“This has been coming for a long, long time – siphoning the Delta to build houses out in the desert,” said Strojan, who raises cattle and forage crops with his son near Farmington. “But we’re farmers in California, and we don’t have the votes anymore. Voters are in Southern California, and that’s where the water is going to go.”

Because of the project’s magnitude, he said it will be difficult to stop. If opponents take the legal route, they’ll likely wind up in years of litigation.

Legal challenges arise

The five-member Delta Counties Coalition, which includes San Joaquin County, has already begun legal actions challenging the environmental report. Additional information is not yet available.

But coalition member and San Joaquin County Supervisor Steven Ding said, “The county has been opposed to the delta tunnel project for many years because of its impacts for Delta communities and county farms. The county isn’t just seeking legal remedies for the delta tunnel problem, we are also seeking common ground and innovative ideas on how to come together with solutions for the water crisis that is impacting all Californians.”

In separate legal action, the Sacramento County Superior Court recently ruled DWR cannot sell bonds to fund the Delta tunnel. San Joaquin, Contra Costa, Solano, Yolo, Butte, Plumas and Sacramento counties, along with related water agencies, had challenged the department’s authority to issue unlimited bonds.

In ruling on the case, Sierra Club et al. v. California Department of Water Resources, the court said the state water code “does not give DWR carte blanche to do as it wishes.”

“Although the Legislature plainly delegated broad authority to DWR, it did not delegate infinite authority,” the court wrote in its Jan. 16 ruling.

A major point of contention was whether the Delta tunnel was a modification of the Central Valley Project’s Feather River Project. The state contended it was, which would have allowed it to issue bonds under the State Water Code. But the courts disagreed and cited the state’s own definition of “Delta Program.”

“In plain words, the problem with DWR’s definition of the Delta Program is that [it] is untethered to the objectives, purposes and effects of the Feather River Project of the Central Valley Project Act. Since DWR lacks the authority to adopt the Delta Program, it necessarily follows that DWR lacks the authority to issue revenue bonds to finance the Delta Project.”

Supervisor Ding hailed the ruling a win for the Delta and state taxpayers. “Instead of bully tactics, the state should take more productive actions like improving levees, developing sensible above- and below-ground storage, and building additional water projects to conserve and reuse water throughout the state.”

Local congressional opposition

The tunnel project has also drawn opposition from area lawmakers. Rep. Josh Harder, D-Stockton and a harsh critic of the project, recently urged the U.S. Bureau of Reclamation to deny the state’s request for federal funding of the tunnel project. He was joined by four other Delta representatives: John Garamendi, D-Walnut Grove; Mike Thompson, D-St. Helena; Mark DeSaulnier, D-Concord; and Doris Matsui, D-Sacramento.

“Read my lips: Zero federal dollars should go to this terrible project,” Harder said in a press release.

In December, he called on the state to halt the tunnel because the final environmental impact report “continues to propose a scheme that would compromise water quality and destabilize the levees protecting Delta communities from devastating floods. The report itself acknowledges the project’s significant negative impacts to the Delta, such as threatening endangered fish populations and imperiling farmland.”

And in February 2023, he reintroduced the Stop the Delta Tunnel Act to Congress. Also known as House Resolution 924, the act would prohibit the Army Corps of Engineers from issuing a Section 404 dredge and fill permit the state needs to build the tunnel.

Environmental review

The state conducted several scoping sessions during 2020 in Delta area communities, Sacramento, Los Angeles and San Jose asking the public what it should include in the environmental impact report.

In comments submitted during those sessions, SJFB Past President David Strecker pointed out the Sacramento-San Joaquin Delta Reform Act of 2009 was enacted to achieve coequal management goals for the Delta. The state had failed to make progress on most of them, including salinity and water quality issues, lack of investment in flood protection, expansion of statewide water storage, and statewide water conservation and sustainability.

The 2009 act also required the state to reduce its reliance on the Delta to meet future water needs. As such, Strecker requested the EIR include how the tunnel would achieve that goal.

The draft environmental impact report underwent a 142-day public comment period beginning Dec. 16, 2022, during which time the state received more than 700 letters and 7,000 individual comments. Under the California Environmental Quality Act, the state had to respond to all substantive comments.

By certifying the final environmental report and approving the project Dec. 21, 2023, DWR determined it complied with CEQA, according to a state press release. In addition, the department said the final document reflected public input and the department’s independent analysis.

The Army Corps of Engineers still must prepare a final environmental impact statement – an analysis of potential environmental effects required under the federal National Environmental Policy Act. Certification is expected this summer.

DWR also needs to obtain numerous state and federal permits and authorizations, including from the State Water Resources Control Board and the Delta Stewardship Council before it can begin construction.

A 2020 estimate pegged the tunnel cost at $16 billion, but most expect that figure to be much higher due to inflation. The Delta Conveyance Design and Construction Authority, the joint-powers agreement established to build the tunnel, is expected to update the construction cost as well as provide a cost-benefit analysis later this year.

How we got here

Of nine proposed tunnel alternatives, including a no-tunnel option, DWR chose the more easterly Bethany Reservoir Alignment for further engineering, design and permitting. The Bethany alignment includes a 45-mile-long tunnel that would carry water from two Sacramento River intakes near Hood and Courtland under the Delta and dump it into the existing Bethany Reservoir. It would pass under New Hope Tract, Canal Ranch Tract, Terminous Tract, King Island, Lower Roberts Island and Upper Jones Tract.

A single concrete pipe, standing 39 feet tall and buried about 100 to 150 feet underground, could transport up to 6,000 cubic feet per second of water. That could amount to 300,000 to 500,000 acre-feet annually.

DWR’s final environmental impact report is just the latest in decades-long attempts to build a project that would transport Northern California water around or under the Delta for eventual delivery to Southern California. Voters rejected then-Gov. Jerry Brown’s Peripheral Canal by nearly a two-thirds margin in 1982. It resurfaced as Duke’s Ditch, followed by Brown’s Twin Tunnels Project, which was subsequently renamed the California WaterFix.

Faced with massive opposition, the state withdrew the WaterFix in 2019, only to have Gov. Gavin Newsom repurpose it as a single tunnel dubbed the Delta Conveyance in 2020. Barring lengthy lawsuits, state officials said they expected to complete permitting by 2026 and begin construction about 2030.