Brown’s tunnels will have to drill through multiple lawsuits
by Gene Beley, Delta Correspondent

March 19, 2017 9:01pm
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•  Tunnel opponents will need to prevail in all of them, attorney warns

•  Discovery Bay town hall rallies citizens for the epic legal battle


At least seven lawsuits will be needed to win the David and Goliath battle against the multi-billion dollar legacy that the governor wishes to leave his people, says an attorney who knows the nuances of California’s unending water wars.

That legacy is an underground version of the governor’s Peripheral Canal, rejected by voters in 1982. The reincarnated scheme by Gov. Edmund Gerald Brown Jr. would see construction of twin 40-foot diameter tunnels from just south of Sacramento to near Tracy to drain water from the Sacramento River and pipe it to the State Water Project and federal Central Valley Project.

Attorney Michael Brodsky told a packed school auditorium meeting of nearly 500 people in Discovery Bay that the twin tunnels are not a done deal and “we can win this thing.” Then he presented the legal process of what has to be done and which meetings are important for residents to show up at in large numbers.

Other speakers included state Sen. Steven Glazer, D-Walnut Creek, who said he had been invited to dinner with the governor at the Governor’s Mansion the same night as the Discovery Bay meeting, but opted to be with the people of Discovery Bay in their fight against the governor’s tunnels.

Mr. Brodsky, whose law office is in Capitola and lectures on water policy at the University of California, Santa Cruz, has a home in Discovery Bay. He has been working gratis for the California Delta Alliance, a non-profit organization in Discovery Bay, but needs funds to cover expenses dealing with the courts.

He joked, when they win this “thing,” maybe he’ll get the other side to pay him. He already guided the Discovery Bay STCDA to one successful lawsuit in San Francisco Superior Court on November 28, 2016. The judge in that case said there had to be three alternatives to the governor’s so-called “Water Fix” and not just the tunnels.

“The Delta Stewardship Council said, “Your honor, you must have made a mistake,” quipped Mr. Brodsky at the Discovery Bay meeting. “You couldn’t possibly mean that about these rubes in Discovery Bay. So they filed a motion for clarification. The judge responded, ‘To be clear, the Delta Plan is invalid and must be set aside until proper revisions are completed.’”

He added that a preemptory writ of mandate was issued to command the DSC to do something and to give a number on how much flow will be left in the Delta and how much water will be exported each year to save the Delta and to focus on less reliance on Delta water.

Mr. Brodsky said the DSC’s response to the lawsuit was “that the DWR [Department of Water Resources], the U.S. Department of Interior, and Bureau of Reclamation should pursue a dual conveyance solution for the Delta by constructing new facilities for isolated below-ground conveyance of the State Water Project and Central Valley Project water supplies from the Sacramento River to the South Delta via multiple intakes.”

“Furthermore,” said Mr. Brodsky, “it stated that they should pursue installation of operable gates or barriers in the south Delta, which I think is just vindictive and aimed at us.”

This brought loud laughter from the audience in Discovery Bay. But the serious side is if any of this happens, it will lower the value of the homes and businesses in Discovery Bay that is a premiere boating community in the California Delta.

Construction of the mammoth twin tunnels 150 feet underground – estimated to last for a decade -- would severely impact tourism throughout the Delta and the residents’ way of life, critics say. Huge barges would be plying the Delta rivers, jackhammer noise and construction lights at night would drive away boaters from some of the prime anchor-out places in the Delta, such as where the Hilton family and corporation have hosted Fourth of July fireworks for decades.

Of course, money is needed to keep the legal ball rolling, stressed Jan McCleery, president of the STCDA, which is accepting donations from residents and other friends of the Delta. She said they have already raised over $10,000 in cash and checks and PayPal since the meeting. She said $35,000 is needed this year and $15,000 next year to stop the governor’s tunnels project.

Just as important as money, both Mrs. McCleery and Mr. Brodsky emphasized, was showing up at key meetings of the opposition like the forthcoming March 23 Delta Stewardship Council meeting at the Community Center in Brentwood.

Mr. Brodsky said that when they were faced with the DWR wanting to install gates impeding navigation of boats to Discovery Bay several years ago, they were successful in blocking that through more than 1,000 written comments from residents and friends of the Delta, and need that kind of support again.

The process to stop the tunnels

The first step, said Mr. Brodsky, is the current appeal and cross appeal that is underway and the hearings at the State Water Resources Control Board. These hearings are expected to start April 25. The next lawsuit will be the challenge to the Environmental Impact Report. This must be filed within 30 days of the Department of Water Resources’ certification of the EIR, which is expected in May or June of this year.

Lawsuit number three will be the challenge to biological opinions. This is expected in May or June of this year.

Lawsuit number four will be the challenge to the Army Corps of Engineers granting permits to dredge and fill for the tunnels’ intakes and other construction. This is expected by this summer.

“There is a very short statue of limitations when you are challenging impact reports,” said Mr. Brodsky, “so that lawsuit has to be filed within 30 days of when the DWR certifies the E.I.R. I would suspect that will be in May or June.”

Lawsuit number five will be a challenge to the Delta Stewardship Council’s certification and that the twin tunnels will be consistent with the Delta Reform Act and Delta Plan.

Mr. Brodsky said residents must participate in the administration process through the Delta Stewardship Council that is Mr. Brown’s right hand to fast track approval of the project. “After the DSC ignores us and goes ahead and approves the tunnels, we have to file lawsuit number five challenging their certification that the tunnels are consistent with the Delta Reform Act,” said Mr. Brodsky. “We will need to participate in the hearings of the State Water Resources Control Board. Then we need to sue them to challenge their issuance of the water rights to move the points of diversion.

“Lawsuit number seven will be to the Army Corp of Engineers’ issuing of permits to dredge and fill to build tunnels under the Clean Water Act and challenge their issuance of labor permit under the Rivers and Harbors Act because the tunnels are an obstruction to navigation.”

The overview and the irony

“The Delta Plan was going to be the master plan to save the Delta, restore the ecology, and make everything great again,” Mr. Brodsky told the audience. “Instead of writing a plan that would do that, the people responsible made it a water grab. The DSC made it a rubber stamp to build the tunnels.

“They are going to take the Sacramento River up near Freeport and put it in a pipe and send it to Los Angeles. All that Sacramento River that used to flow to Discovery Bay and keeps our water fresh won’t be there anymore. We’re going to be polluted by salt water. The San Francisco Bay water will be replaced by San Joaquin river water. It is heavily loaded with agriculture return flow and fertilizers. So we must stop this thing.”

Other key speakers at the rally town hall meeting included Mrs. McCleery, and Assemblyman Jim Frazier, D-Oakley, who said he would soon be a permanent resident of Discovery Bay.

Michael A. Brodsky—Discovery Bay Town Hall Meeting March 3, 2017 from Gene Beley on Vimeo.

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