Flood of lawsuits filed in effort to stop governor’s tunnels scheme

August 21, 2017 9:01pm
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•  Cities, counties, environmental groups and citizens fighting the might of the state

•  “We are being run over and we are going to fight back”

Cities, towns and counties in the California Delta and Northern California, along with environmental groups and property owners are taking on one of the biggest legal challenges to Gov. Edmund Brown Jr. since Californians rejected his Peripheral Canal in 1982.

Now, the counties and cities are trying to stop Mr. Brown’s underground version of his Peripheral Canal, a massive tunneling project to siphon off water from the Sacramento River before it can flow into the Delta and ship it to the State Water Project and federal Central Valley Project. The fresh water would be sold to growers in the southern San Joaquin Valley and to the massive Metropolitan Water District in Los Angeles.

One of the new lawsuits, filed Monday, is by homeowners and others in Discovery Bay in the Delta.

Save the California Delta Alliance says in its lawsuit against the governor’s Department of Water Resources that DWR failed to provide a legally adequate and comprehensible Environmental Impact Report, despite its enormous size.

“Rather than inform, the intent … is to obfuscate, in large part through overwhelming the reader with irrelevant, repetitive, hyper-technical text. Like a sumo wrestler, the EIR deploys its enormous heft to smother opponents under the tremendous weight of its 80,000 pages,” reads the complaint.

The lawsuit goes well beyond the standard claims usually made by project opponents in lawsuits under the California Environmental Quality Act. Delta Alliance included what it says are more substantive and lethal legal claims alleging that the landmark 2009 Delta Reform Act requires DWR to “reduce reliance on the Delta as a source of exported water and replace exported Delta water with new local and regional supplies.”

“Obviously building gigantic twin tunnels that can suck up almost half the flow of the Sacramento River does nothing to reduce reliance on the Delta,” says Delta Alliance attorney Michael Brodsky. “DWR is flaunting the law.”

U.S. Rep. John Garamendi, D-Fairfield, has long been a foe of the tunnel plan. “The driving force behind the Delta Tunnels boondoggle has been ideology not science. There is no scientific or policy rational for going forward with this project,” he says.

Delta Alliance’s lawsuit takes a different tone, calling out Mr. Brown’s psychological hang up with completing the Brown family legacy water project. His father, who was governor of California in the 1950’s and 60’s, built the state’s system of pumps and canals that move Delta water all over the state.

But the current Gov. Brown was defeated by the voters in 1982 when he tried to build the Peripheral Canal around the Delta. “This is a grudge match. It has nothing to do with public policy,” says Mr. Brodsky.

Delta Alliance’s lawsuit says construction of three massive new water intakes will obliterate the small town of Hood, which is inside a giant construction zone. The town of Clarksburg, just across the river from enormous construction works, will also be hit hard by construction impacts.

“We are being run over and we are going to fight back,” says Mr. Brodsky.

But Mr. Brodsky’s group is just one to file lawsuits on Monday against the tunnels scheme.

Contra Costa County, San Joaquin County, Solano County, Yolo County, Contra Costa County Water Agency, Central Delta Water Agency, South Delta Water Agency and Local Agencies of the North Delta filed a lawsuit in Sacramento County Superior Court challenging what they call the Department of Water Resources’ flawed approval of the Environmental Impact Report for the project, commonly known as the “twin tunnels.”

“Like many other Bay Delta stakeholders, we have identified major flaws with the … proposal, significant impacts to water quality and the ecosystem, and continue to urge consideration of other more viable alternatives. What is surprising is the continued panicked rush by the state to push for a project that does not pencil out. Clearly, the enormous project costs and the lack of new water will have exporters walking away,” says Contra Costa County Supervisor Karen Mitchoff.

How much the governor’s tunnels will cost is a still open question. While the DWR puts the figure at $17 billion, independent economist Jeffrey Michael has estimated the final cost, including interest on borrowed money at as much as $68 billion.

Unlike Mr. Brown’s canal, his tunnels would not be financed with general obligation bonds, which would trigger a vote by Californians. Instead, the cost is supposed to be paid by revenue bonds, which are to be repaid by higher water charges.

But Mr. Michael has estimated that would make irrigation water too costly for farmers to buy, putting the repayment on the shoulders of businesses and residents of Los Angeles and other parts of Southern California.

“The truth never mattered and pertinent facts were ignored because the state had already predetermined the selection of the twin tunnels,” says San Joaquin County Supervisor Chuck Winn. “This lawsuit should provide some accountability by the state to accurately disclose negative impacts of the project, genuinely examine viable alternatives that will avoid environmental harm and legitimately give the public and affected agencies the opportunity to review and comment on anticipated and significant tunnel impacts.”


“The Tunnels project threatens the Delta’s water quality and agricultural heritage, but the lead agencies have still not fully disclosed or mitigated the project’s significant, negative impacts on Solano County and the Delta region. The environmental review that we’re challenging today simply fails the basic legal requirement to inform decision makers and the public about the true impacts of the project, but at least one thing is clear: the Tunnels represent a major missed opportunity to find a real solution for the challenges facing the Delta and the state,” said Solano County Supervisor Skip Thomson.

There are still others suing DWR over the tunnels.

A coalition of conservation groups – AquAlliance; California Sportfishing Protection Alliance; California Water Impact Network; Center for Biological Diversity; Center for Food Safety; Friends of the River; Friends of Stone Lakes National Wildlife Refuge; Planning and Conservation League; Restore the Delta; Save Our Sandhill Cranes; and Sierra Club California – also has sued the Department of Water Resources over its approval of the controversial Delta tunnels project.

“Once again Big Ag in the San Joaquin Valley has come begging for more corporate welfare,” says Adam Keats, a senior attorney at the Center for Food Safety. “Only this time it’s at an obscene scale, with tens of billions of dollars to be pilfered from the people’s pockets, an entire ecosystem driven to collapse, and incredible harm caused to the Delta farming economy and California’s sustainable salmon fishery.”

The suit challenges the proposal to build the two 35-mile-long tunnels to siphon water from the Sacramento River and send it to Southern California. The project would increase extinction risk for several endangered species and potentially devastate Delta farmers, Sacramento Valley communities and fishermen throughout the region, the lawsuit says.

“This project no doubt sets the all-time record for the combination of environmental destruction and economic waste threatened by a single California public-works project,” says Bob Wright, senior counsel for Friends of the River.

“For ten years we’ve been fighting to get the tunnels’ proponents to look jointly for better solutions that don’t destroy the Delta. They didn’t listen and now we’re turning to the courts to enforce critical environmental protections to save the Delta and Delta communities,” says Osha Meserve, counsel for the Local Agencies of the North Delta.

“As farmers growing wine grapes and producing wine, we rely on adequate fresh water flows from the Sacramento River as we all have for the last 165 years. The tunnels threaten family farms throughout the Delta, along with its fish, wildlife, and all its environmental values,” adds Clarksburg farmer Mark Wilson.

Because so many lawsuits have been filed, attorneys expect an effort to coordinate them in a single venue, which could take several months.

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