Somach Simmons and Dunn, Attorneys at Law Somach Simmons & Dunn | Attorneys at Law

May 3, 2019  |  Written by Brenda C. Bass, Kelley M. Taber and Aaron A. Ferguson

DWR Withdraws Approvals and Permit Applications for WaterFix, Confirms Plans for Single Delta Tunnel

The California Department of Water Resources (DWR) formally withdrew its approval for the twin tunnel water project known as California WaterFix, its certification of the environmental impact report (EIR) for the project, and its Petition for Change in Points of Diversion (Change Petition) pending with the State Water Resources Control Board associated with the project on May 2, 2019.  At the same time, DWR announced its plans to proceed with a single tunnel and a new more transparent permitting process that would be part of a larger “portfolio based” water action plan announced two days earlier.  The twin tunnel withdrawal comes almost two years after DWR approved the project and authorized issuance of up to $11 billion in bonds to pay for it.  The approvals triggered the filing of 22 separate lawsuits in state and federal court challenging the project.  The Change Petition proceedings have been pending since 2015.

The withdrawals were accompanied by news releases outlining DWR’s plans to initiate a “renewed environmental review and planning process for a smaller, single tunnel project.”  DWR’s newest pursuit has not yet been named, but the intent is “modernizing Delta conveyance infrastructure.”  DWR states that the new approach to the Delta conveyance will focus on involving Delta communities in the evaluation of options and on climate change resiliency for both the local Delta community and the longevity of north-to-south water conveyance infrastructure.  Additionally, DWR states that “Governor Newsom is committed to a more transparent and collaborative process with Delta stakeholders to better communicate the impacts and to work together to explore new ideas for addressing these issues.”  DWR also committed to undertaking “more engineering work” in the near future “than has been done in the past” and that engineering will precede a new water rights change petition.

Many of the statements made appear to be in direct response to issues raised by the more than 100 parties challenging the EIR, bond authorization, and Change Petition – namely the failure to evaluate and mitigate impacts on Delta communities, and the lack of transparency and disclosure about WaterFix and its operations.  Commitments to front load engineering details appear also to respond to challengers’ concerns, echoed by the Delta Stewardship Council, that DWR had not provided sufficient information about the twin tunnels project, or its operations, and that project design did not accurately account for the future conditions in the Delta due to climate change.  In its letter to the State Clearinghouse rescinding the Notice of Determination for the WaterFix EIR, DWR struck a defiant tone, stating, “DWR stands behind the science that supported the analysis in the Final [EIR] and the finding that the Final EIR was completed in compliance with the California Environmental Quality Act.”  It remains to be seen to what extent DWR will attempt to rely on the studies that it performed as part of the twin tunnels EIR, the adequacy of which was vigorously contested through expert testimony in the Water Right Change Petition hearing as well as the extensive CEQA litigation.

DWR has not yet disclosed whether it intends to withdraw the WaterFix bond resolutions, which are subject to numerous challenges in litigation DWR filed to validate the bonds.  It remains unclear what will happen with the validation action now that the project and cost estimates these items are based on no longer exist.

For more information and DWR’s official withdrawal notices and news releases, please visit https://water.ca.gov/deltaconveyance.  Please contact Brenda Bass (bbass@somachlaw.com), Kelley Taber (ktaber@somachlaw.com), or Aaron Ferguson (aferguson@somachlaw.com) for further information.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.