California’s Delta Conveyance Project suffered a setback when a superior court judge ruled the water board exceeded its authority when it issued revenue bonds to fund the project.
Sacramento County Superior Court Judge Kenneth C. Mennemeier issued a ruling on Jan. 16 that the California Department of Water Resources’ (DWR) definition of “delta program” lacks a clear connection to the objectives and purposes of the Feather River Project.
DWR argued that the planning and construction of a delta water conveyance facility, as outlined in the Delta Program, falls within the discretion and authority granted to the agency by the legislature in Section 11260 to modify the Feather River Project.
Section 11260 refers to three reports dated May 1951, February 1955 and February 1959. Each report describes the project and its features.
The 1951 report states the primary objective of the Feather River Project was to collect and store excess water from the Sacramento River’s “most significant tributary,” the Feather River. This stored water was intended for transportation to counties in the Bay area, the western side of the San Joaquin Valley and regions in southern California.
The 1955 report outlined a proposed “Delta Cross Channel” as part of the Feather River Project. This channel was intended to transport water from the Sacramento River to the western channels of the San Joaquin Delta, enabling the water to reach the intake channel leading to the project pumps. While a Delta Cross Channel was never constructed, the 1959 report discussed alternative aqueduct locations.
Delta Program details
Exercising the authority granted by Section 11260, DWR sought to “modify” the Feather River Project, naming this modification the “Delta Program.” The program entailed designing and constructing “facilities for the conveyance of water” in the Sacramento-San Joaquin Delta. At DWR’s discretion, the Delta Program facilities may involve water diversion intake structures on the Sacramento River and a tunnel to transport water to the Banks Pumping Plant.
DWR contended that the planning and construction of a delta water conveyance facility, as outlined in the Delta Program, falls under the discretion and authority granted to DWR by the Legislature in Section 11260 to modify the Feather River Project.
Several defendants, including the counties of Sacramento and Tulare, water agencies and the Sierra Club, contend that DWR acted outside the scope of its delegated authority under Section 11260 in adopting the resolution to sell bonds to finance the project.
Mennemeier wrote the issue was whether the Delta Program, as defined by DWR, was a “modification” within the confines of DWR’s statutorily delegated authority over the Feather River Project or whether the broad definition of the Delta Program extends beyond a “modification,” exceeding the scope of DWR’s delegated authority.
“The court acknowledges that statute but finds it inapplicable,” Mennemeier wrote, referring to Section 11260. “This statute does not give DWR carte blanche to do as it wishes. For DWR to act, it must have delegated authority. Although the legislature plainly delegated broad authority to DWR, it did not delegate infinite authority.”
DWR hoped to raise $16 billion or more to construct the 45-mile underground tunnel, which is expected to take 12-13 years to build. In December 2023, DWR released the tunnel’s final environmental impact report.
The report comes as the agency stressed that the state will lose 10% of its water supply due to climate change by 2040.
Lawsuit
Shortly after Mennemeier’s decision, environmental groups filed suit in the Sacramento County Superior Court against DWR for approving the delta project, claiming it would have adverse effects on the Sacramento-San Joaquin Delta.
“The last thing California needs while fighting the climate emergency is a gigantic tunnel wreaking havoc on a sensitive ecosystem and the communities that rely on it,” said John Buse, senior counsel at the Center for Biological Diversity. “Instead of doubling down on this disastrous project, the state needs to take a hard look at groundwater storage, water conservation and other alternatives that don’t leave a trail of environmental destruction.”
The environmental groups assert the project’s construction and operation are anticipated to significantly harm the San Francisco Bay-Delta estuary, reducing flows, increasing salinity, decreasing the food supply and threatening endangered fish species. DWR’s approval and a certified final environmental impact report are alleged to violate the California Environmental Quality Act, the Delta Reform Act and the state’s bird statute.
The groups are requesting a writ of mandate to nullify project approvals, citing DWR’s failure to fairly assess alternatives and the severe adverse effects on the Bay-Delta system. — Charles Wallace, WLJ contributing editor
