With a seeming vote of confidence from the Metropolitan Water District of Southern California – the giant agency that supplies water to about half the state’s 38 million residents – Gov. Jerry Brown appears set to soldier ahead with his $17 billion plan to build two 35-mile-long tunnels under the Sacramento-San Joaquin Delta.

Brown’s view that the tunnels are crucial both to stabilize the Delta ecosystem and to shore up the state’s water distribution system was rejected last week by the board of the Westlands Water District, which voted 7-1 against joining in the “California WaterFix” project. Westlands – the nation’s largest agricultural water district with 600,000 acres of farmland in Fresno and Kings counties – had been counted on to cover about $3 billion of the project’s total cost.

But Westlands officials voted “no” after expressing concern both about the high price-tag they’d have to pay and about whether WaterFix truly would make water supplies more consistent and reliable. The water district was the first in the state to decide on whether to sign up for the project, and its decisive early opposition appeared to stun some supporters.

This led to reports that Brown’s legacy project could be all but dead by Oct. 10, when the MWD is scheduled to vote on whether to participate. The agency is expected to cover $4 billion of the project’s cost.

But on Tuesday, MWD leaders indicated that at least for now, they were still supportive. Board member Larry McKenney said it was in MWD’s interest to try to promote confidence in the project going forward, according to a Sacramento Bee report. MWD shares Brown’s view that the project is crucial for long-term water distribution reliability.

Brown’s would-be successors cool to his plan

Yet the MWD reprieve might not save the day for WaterFix. For months, Sacramento insiders have noted that Brown appears far more enthusiastic about the project than other significant players in state politics – including those running to succeed him as governor next year.

Los Angeles Times columnist George Skelton reported Tuesday that Lt. Gov. Gavin Newsom, state Treasurer John Chiang and former Los Angeles Mayor Antonio Villaraigosa had each expressed doubts about the project. Newsom and Chiang worried about its environmental impact on the Delta and beyond, while Villaraigosa suggested bold new conservation programs should be tried to see if they could save enough water to make the tunnels unnecessary.

But even if the Westlands district, Newsom, Chiang and Villaraigosa were all on the WaterFix bandwagon, its future would hardly be assured. Environmentalists have a long history of suing and winning over California water policies. In June, they filed the first two of what could be several federal lawsuits targeting Brown’s project in response to a preliminary go-ahead given by the Trump administration.

The Natural Resources Defense Council, the Defenders of Wildlife, the Bay Institute and the Golden Gate Salmon Association alleged that the project would wipe out salmon, smelt and other fish and would worsen water quality not just in the Delta but the San Francisco Bay.

While the Trump administration gave initial approval to WaterFix, it too could prove a wildcard. House Republican Majority Leader Kevin McCarthy of Bakersfield and other GOP lawmakers from California have urged the White House to challenge water allocation policies they have long argued favor Delta fish over human beings.

While it didn’t register as significant news in California, Trump’s nomination of David Bernhardt to the No. 2 job in the Interior Department this spring suggested changes in how the federal government deals with water in the Golden State could be in the offing.

As CalWatchdog reported in June, Bernhardt is a Colorado-based partner in Brownstein Hyatt Farber Schreck, a law firm which has represented the Westlands Water District in federal lawsuits targeting Interior Department policies. This background and other concerns led 43 Senate Democrats to vote against his confirmation in July.

A series of budget bills are a great example of the truism that Emanuel had detailed. In early April, for instance, Gov. Jerry Brown had announced in a statement the end to emergency water-use restrictions (in all but four counties) that had been implemented as a result of the five-year drought. That relaxation of state-mandated water-conservation rules was expected after a season of record rainfall and floods in much of the state.

But Brown also noted that climate change remains a major threat and that another drought could be right around the corner. Water officials concurred.

“The statewide emergency clearly is over, but it makes sense to continue to assist areas where emergency drinking water projects are still needed in hard-hit areas. We also understand the need for continued water waste prohibitions and reporting requirements as a ‘bridge’ to permanent measures under the long-term conservation framework issued in final form today,” according a statement from the Association of California Water Agencies.

Indeed, the governor’s conservation ideas are now included in a package of water-related trailer bills. Trailer bills implement the already passed state budget, and are supposed to be technical in nature. But governors often use these bills to quietly pass substantive measures – and to do so without full hearings and vetting. In this case, three bills, by Assembly member Laura Friedman, D-Glendale, make permanent a variety of wide-ranging conservation edicts.

For instance, Assembly Bill 1667 “applies the requirement to adopt an agricultural water management plan (AWMP) to all agricultural water suppliers,” according to the official bill analysis. It also “applies agricultural water supplier efficient water management practices … to all agricultural water suppliers (and) requires AWMPs to have a drought plan.”

AB1668 “creates a new drought response plan by making numerous changes to water supply planning and drought planning to incorporate climate change, enhance water supply analysis, and strengthen the enforceability of urban water management plans … and drought contingency planning.” AB1669 requires the State Water Resources Control Board and the Department of Water Resources “to adopt long-term standards for urban water conservation and water use.”

Not all water officials are supportive of the approach. “Governor Brown’s water legislation is seeking to give unlimited power and control, minus any oversight or accountability, to an agency with the competency of Caltrans and the compassion of the Franchise Tax Board,” said Brett Barbre, vice president of the Municipal Water District of Orange County and a director of the Metropolitan Water District of Southern California. The fear is the bills would give state agencies permanent drought-style emergency authority to demand water-use cutbacks on municipalities and businesses.

This certainly jibes with the governor’s stated goal of making conservation a “way of life.” And while Brown did remove those emergency water restrictions, he has not rescinded his May 2016 executive order, issued in the thick of the drought, that details a host of conservation measures.

One calls for a permanent framework of water restrictions that push urban water agencies to reduce water use by 20 percent by 2020 using strategies such as strengthened standards to reduce per-capita water use and restrictions on industrial water use. Another imposes permanent restrictions on hosing off sidewalks, watering lawns and washing cars. Yet another one calls for the completion of detailed management plans by agriculture water users.

These are restrictions the governor has long advocated. Most Californians understand the need for water conservation and have largely exceeded the tough standards the state government has imposed. They also realize that this year’s wet season could easily be followed next year by a dry one. But critics also question some of the government’s own water policies.

For instance, as I reported in 2015, federal and state officials were lowering water levels at the massive New Melones Reservoir and draining Lake Tulloch to help a dozen hatchery fish make their way to the Pacific. As Californians cut back on watering their lawns, their officials were draining water supplies for questionable purposes. Irrigation officials in the Sierra foothills were wondering why the state wasn’t prioritizing water needs at the apex of a drought, or at least able to temporary halt these fish-related water flows during a time of scarcity.

Furthermore, officials at the California Coastal Commission continue to delay approvals for a Huntington Beach desalination plant over concerns about the effect of the plant’s proposed ocean-intake pipes on microscopic plankton. 

But the big news for now is that the governor’s trailer bills are moving forward – and they attempt to turn the drought crisis into permanent water policy. 

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

Central California residents, long hoping for federal water reform, have begun to see some movement from Washington. 

Rep. David Valadao, R-Calif., has rolled out language designed to “build on last year’s legislation that was loved by farmers and loathed by environmentalists,” as McClatchy reported. “The bill scales back an ambitious San Joaquin River restoration program, speeds completion of California dam feasibility studies and locks in certain water deliveries to Sacramento Valley irrigation districts, among other things. Parts of the bill would not have been accepted by the Obama administration, but the Trump team is different.”

Drought-busting levels of rain and snow have put pressure to lift emergency restrictions on usage, but California regulators declined to ease up on the longstanding curbs.

“Amid the ongoing succession of storms, water managers up and down the state are urging regulators in Sacramento to permanently cancel historic, emergency drought rules that have been in place for 18 months,” U-T San Diego reported late last month. “It’s an escalation of their ongoing opposition to these restrictions, which already have been eased considerably since homeowners and businesses were first forced to cut consumption by a statewide average of 25 percent. California doesn’t have an official definition for statewide drought, leaving it up to the governor’s discretion on when to announce an end to that designation.”

Swift, uneven progress

But in a new report, the State Water Resources Control Board insisted that the drought’s persistent impact had to be mitigated further before any changes could be considered. “Some reservoirs remain critically low and groundwater storage remains depleted in many areas due to the continued impact of prolonged drought,” they concluded, according to the Sacramento Bee. “Precipitation cannot be counted on to continue, and snowpack levels, while above average for the current time of year, are subject to rapid reductions as seen in 2016 and before.” While the extraordinary rules imposed to conserve water were on track to expire at the end of this month, the board planned to extend them 270 days into the future.

The caution struck a contrast to the swiftness of California’s transformation from dry to wet. “According to the U.S. drought monitor website,” HotAir noted, “there are no areas of exceptional drought left in the state.” Updated data, the site observed, “indicates that one year ago 64 percent of the state was considered to be under either extreme or exceptional drought conditions, the two highest categories. Now, largely thanks to the storms over the past month, that figure has dropped to 2 percent.”

Continued challenges

Water districts have now had to scramble to figure out how to store what could be excess water if the new trends continue. Although the pathway to new storage initiatives has been cleared and funded, the state’s bureaucratic process will add extra time. “In 2014, voters approved a $7.5 billion water bond, including $2.7 billion for storage projects, to provide funding to water projects and programs throughout the state,” KXTV recalled. “Since then, government agencies across the state have been developing the process for accepting proposals.” This month, the station added, “the Water Commission will consider bids on numerous water storage projects across the state.”

And milder drought conditions have persisted. “Overall, the monitor … showed 51 percent of California remains in some form of drought, but that’s down from just over 57 percent last week and compares with 81 percent three months ago,” CNBC reported. And in a twist adding an unexpected layer of politics to the fraught question of resource management in the most beleaguered parts of the state, some Central Valley water officials became the focus of a misspending scandal. “An irrigation district in Central California’s prime farming region gave its employees free housing, interest-free loans and credit cards that the workers used to buy tickets for concerts and professional sports games, possibly breaking the law,” said state officials according to NBC Bay Area. “Employees at Panoche Water District based in Firebaugh used the credit cards to buy season tickets to Raiders and Oakland A’s games and attend a Katy Perry concert, officials said.”

The long view

Meanwhile, Gov. Jerry Brown has kept a focus on what regulatory framework will persist even after all drought conditions have been adequately mitigated. “Brown has asked the state agency to design new conservation rules for water districts that will stay in place regardless of whether California is in drought,” according to U-T San Diego. “In the long run, the governor and state regulators are moving forward with their plan to establish permanent usage budgets tailored to each water district, as well as a suite of other regulations governing water consumption. The new rules are expected to include caps for both indoor use and outdoor water use, taking into consideration differences in weather patterns and other factors from one geographic region to another.”

Anthony Koslow, Eric Miller and John McGowan — marine biologists at Scripps Institution of Oceanography in La Jolla — were responding to comments made at a Dec. 1 panel about ocean desalination in Ventura County by Tom Luster, the agency’s lead staffer on the desalination issue.

Luster actually had cited Koslow, Miller and McGowan’s research in arguing against open intakes given a 75 percent reduction in plankton off Southern California since the early 1970s. Citing the Scripps research Luster said it would be “hard to maintain and enhance marine life like the Coastal Act requires in a situation like this and so open intakes have a hurdle to overcome.”

In a sternly worded Dec. 29 rebuttal letter, Koslow, Miller and McGowan said Luster’s comment reflected “an inaccurate understanding of our research,” adding that their paper showed “many of the taxa are predominantly distributed offshore but share the same trend as more coastal taxa.” 

“It is therefore not reasonable to attribute this decline to the impact of coastal development or nearshore power-plant intakes,” the scientists wrote. “We ask that you refrain from repeating your Ventura forum comments, or anything similar, as it presents an almost exactly opposite conclusion to that obtained by our research.”

The Scripps researchers’ conclusion was that large-scale ocean forcing, not local coastal processes, are behind changes off the Southern California coast since the 1970s. They added that they hoped their science could “inform regulatory decisions wherever applicable, but the science needs to be interpreted correctly.”

In an emailed response, Luster said his point was that the decline in plankton populations had made it difficult for the new proposed project, which he said “would represent an additional adverse effect to meet the Coastal Act’s requirement to maintain and enhance marine life productivity.” But Miller — one of the Scripps researchers — reiterated that their study, which found that environmental forcing had reached tipping points in 1976 and 1989, “did not detect an influence of power plant cooling water intakes on nearshore fish populations.”

“It’s a mystery to me how my quote was misinterpreted,” Luster said, in an interview.

The question at issue is no mere academic matter. The future of the Huntington Beach desalination plant isn’t just about one proposed facility, but about the statewide future of a technology that turns saltwater into drinking water. That’s a particularly important question as the state begins to emerge from a long-running drought. Decisions by the commission and other state agencies on the Huntington Beach plant will help decide whether developers pursue a number potential plants up and down California’s coastline.

A desalination plant went online last year in the north San Diego County city of Carlsbad, but the makeup of the Coastal Commission and state regulations have changed since the approval process for that facility. As the Los Angeles Times reported, the state water board “directed desalination plants to install wells — offshore or on the beach — or another type of subsurface intake that the state says would naturally filter out marine organisms.” However, the plant’s supporters point out that state laws require subsurface intake technologies to be technically, economically, socially and environmentally feasible.

According to Poseidon Vice President Scott Maloni, the harm to plankton is minimal.

“There are estimated to be 115 billion larva in the source water of the desal plant,” he said. “Our estimated entrainment is 0.02 percent. Put another way, for every 10,000 fish eggs the desal plant is anticipated to entrain two. That means that 9,998 fish eggs are not at risk. This entire debate is over the potential loss of two out of 10,000 fish eggs in the desal plant’s source water, 99 percent of which die of natural mortality.”

The latest fracas over the Huntington Beach desalination plant bolsters Coastal Commission critics who believe the commission’s problems with the plan stem more from its hostility to growth than any real concerns about the fate of the food chain’s lowliest members.

Steven Greenhut is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

Gov. Jerry Brown’s aides treated the release last week of a massive environmental review that marshaled evidence in support of his $15.7 billion plan to build two 35-mile-long tunnels in the Sacramento-San Joaquin Delta as an

Critics, however, scoffed, saying Brown’s project becomes more unpopular the more it is discussed. In October, when the governor hoped to have consolidated broad support behind the plan, four Northern California members of Congress and eight members of the California Legislature sent letters imploring the federal government to look at what they called fundamental flaws in the project, starting with its shaky financing.

The 90,000-page document hailed by the Brown administration concludes that the two huge tunnels would stabilize statewide water deliveries from the Sacramento River and improve the health of the Delta in a way that was the least problematic of various options now being considered. If approved by state and federal regulators and the Legislature, the project would divert in normal conditions 5 percent more water from the river than is now standard.

The governor told reporters the tunnels had been subject to “more environmental review than any other project in the history of the world.”

Greens, some farmers implacably opposed

Yet even if regulators give their blessing, Brown faces huge political obstacles: While the project has the support of water districts in Southern and Central California and is expected to win support from the business community, politically influential environmentalists have been staunch opponents. They argue that the massive tunnels would actually create new environmental problems, among other criticisms.

The proposal also remains deeply unpopular with Northern California farmers. “We just don’t think that the only answer is to take more water out of a river in crisis,” said Osha Meserve, a Sacramento land-use lawyer working with agriculture and conservation groups, told the Los Angeles Times. Meserve said even if the review was “a million pages,” it couldn’t redeem a bad idea.

The project could also be a tough sell to the public, Sacramento insiders believe — and not just because it would raise water rates statewide. Some Californians unaware of the state’s 160-year history of trying to create a more reliable state water system may see it as a costly overreaction to the drought. Some will look at the highly publicized problems with two other big state projects — the bullet train and the Bay Bridge — and wonder whether the state is up to the challenge of building two massive tunnels.

In May 2015, Brown said critics of his “WaterFix” plan should “shut up” until they were more familiar with it. But in the ensuing 19 months, criticism has only grown as more details are released. Environmentalists think Brown is overselling the benefits of the plan. Many Republicans say the billions would be much better spent on new dams and reservoirs.

It appears the governor will have to do considerable lobbying and arm-twisting — much as he did with Propositions 47 and 57, his two criminal-justice reforms — to line up support in the Legislature. A campaign apparatus — the Californians for Water Security — has been set up to aid his efforts. But as he grows closer to the end of his fourth and final term as governor, his influence seems likely to wane.

Some lawmakers hope to give voters veto power

Meanwhile, a new hurdle looms. A bill with eight co-authors that sought to require a public vote before the tunnels could be built — AB 1713 — passed an Assembly committee on an 8-4 vote early this year only to never be considered again. It is likely to re-emerge in the coming session, its sponsors say.

In his first go-around as governor, Brown’s similarly ambitious proposal to shift water from Northern California to points south was rejected soundly at the ballot box. Proposition 9, the Peripheral Canal Act, lost 62 percent to 38 percent in June 1982. Opponents built their campaign on the idea that the project was highly expensive and that it helped Southern California at the expense of Northern California.

But the larger war over how California’s limited water resources are used seems far from over. The compromise’s approval is sure to spur new court battles. It could also embolden House Republicans like McCarthy and Devin Nunes, R-Tulare, and conservative think tanks to seek further changes in federal policies.

Environmental groups are expected to sue over new rules which allow federal authorities in charge of water supplies in the Sacramento-San Joaquin Delta to deliver more water to farmers in periods of drought.

The Endangered Species Act has been a potent weapon for environmental groups, which have often succeeded in getting judges to adopt broad interpretations of provisions that have been used to protect the delta smelt and Chinook salmon in Northern California waterways. This thinking is reflected in a lawsuit filed in March by green groups, which say even the strong environmental stances of federal and state regulators under Democratic President Barack Obama and Democratic Gov. Jerry Brown don’t go far enough in providing fresh water to the delta.

Such tactics awaited George W. Bush after he became president in 2001. His administration was stymied in efforts to shift environmental policies by legal action and effective lobbying in Congress. By one tally, environmentalists won 27 of their 38 suits against the two-term president.

Endangered Species Act long a Republican target

But the same attitude seen in Natural Resource Defense Council lawsuits against Democratic administrations — why settle for a good result when more is possible? — could soon animate Republicans, especially those who have chafed at how much control the federal government has over land-use decisions in the West. Nunes in particular has long railed against federal indifference to the concerns and needs of Californians.

The Washington consensus is that Feinstein cut a deal because of the fear that a Trump administration would go much further in revamping interpretations of existing water and endangered species laws. This led her to make a major concession to McCarthy: Allowing the secretary of commerce and the secretary of interior to play a key role in determining in how water is allocated between the Delta and farmers.

That provision alone could turn California water policies upside down.

Trump’s nominee for commerce secretary, billionaire investor Wilbur Ross, doesn’t have high-profile views on land-use issues. His nominee for interior secretary, Montana Rep. Ryan Zinke, is open to the federal government allowing much more of its land to be used for oil and gas drilling, but has spoken of the importance of preserving public lands.

There is also the possibility that the Trump administration could target the Endangered Species Act itself — either through executive orders reinterpreting the law or by encouraging congressional action.

Conservative think tanks have long faulted the species act for far more than denying water to Central Valley farmers. It’s viewed as the California Environmental Quality Act is seen by business groups and conservatives in the Golden State: as a blunt, coercive tool to win land-use battles.

A 2007 report by the Dallas-based National Center for Policy Analysis offers a framework for the sort of policies the Trump administration could pursue.

The most decisive — and most controversial — would simply be for the secretaries of commerce and the interior to make it more difficult to a species to be designated as endangered and easier for a species to be taken off the protected list, reducing the authority now wielded by the U.S. Fish and Wildlife Service. Conservatives have long argued that designations of 1,300-plus native species and plants are excessive and arbitrary.

California’s beleaguered farmers had their hopes for a better 2017 rekindled as landmark water legislation delayed for years finally passed Congress. But the political cost to Sen. Dianne Feinstein, a key supporter, has been high, with outgoing Sen. Barbara Boxer digging in her heels against the bill and pushing for White House opposition. The strife has underscored the difficulty California Democrats have had in smoothing over internal disagreements over core policy issues that have risen to the surface of contention after years of all but one-party rule in the state. 

“A rough five years in the making, the $558 million bill approved by the Senate early Saturday morning steers more water to farmers, eases dam construction, and funds desalination and recycling projects,” McClatchy reported. For state farmers, the bill promised a greater inflow of water from Delta pumps, drought relief and a dose of federalism.

Curtis Creel, Water Agency General Manager for Kern County, told Bakersfield Now the rule requiring an increased role for state and local officials mattered most. “It instructs the (Federal) Fish and Wildlife Service to coordinate with state and local agencies who have expertise in dealing with science related to the Delta, as well as operations of the water projects,” he approvingly explained. 

For its part, the Golden State has stuck to a neutral position for now. “In California, the state’s Natural Resources Agency is staying out of the fray and declined comment on the bill,” according to the San Jose Mercury News. 

Long wait

Central Valley farmers have held out for measures like the water bill’s for decades. “All sides agree the California water package marks the biggest federal shift in the state’s water use since the 1992 Central Valley Project Improvement Act, which focused more on protecting the Sacramento-San Joaquin Delta,” McClatchy noted. “Farmers hated the CVPIA but, in a mirror image of this year’s water bill, it was included in a bigger package that rolled right over one of the state’s protesting senators.”

“The Republican senator who was left standing alone in fighting the 1992 bill, John Seymour, was subsequently defeated by Feinstein. One of the other big losers in that earlier legislative fight, the Westlands Water District, is among the victors in this year’s bill, after spending more than $1 million on lobbying in the last two years.”

Democrats divided

In an ironic twist, Feinstein herself has now found herself at the center of controversy among fellow Democrats. In the unusual position of defending her decision against environmentalist fears, “Feinstein’s office claimed that the legislation does not violate the Endangered Species Act, because it contains a ‘savings clause’ that dictates that nothing in the provision shall violate the act,” the San Francisco Chronicle reported. “House Democratic aides countered that the courts have ruled that direct instructions from Congress, in this case on how much water can be pumped from rivers, always supersede more general clauses declaring that nothing in the legislation violate bedrock environmental law.” Boxer has suggested that the legislation’s fate will have to be settled in the courts. 

But the momentum in Washington favors its passage, even with President Obama’s cautious disapproval of its current language. Through his press secretary Josh Earnest, President Obama declined to throw Feinstein a political lifeline, but did little to shore up Boxer’s position. “Based on what we know so far, we don’t support the kinds of proposals that have been put forward to address some of the water resources issues in California right now,” Earnest said, as CalWatchdog previously noted. “So, we don’t support that measure that’s being put forward, but we’ll take a look at the bill in its totality.” But the White House did not raise the prospect of a veto — possibly managing expectations in the face of strong support in Congress for the bill’s broad infrastructure reform. 

For the first time, California regulators have warmed to the idea of directly serving up treated sewer water to residents, underscoring the difficulty officials have had in uniting around alternative means of setting the state’s water policy on stable foundations.

Direct use

“A new report released by the State Water Resources Control Board last week outlines what needs to happen before drinking treated wastewater, also known as ‘direct potable reuse,’ becomes a reality,” Southern California Public Radio reported. In sum, a battery of new regulations, focused on ensuring that filtration processes meet a number of rigorous criteria, would be required — a goal the board opted not to suggest a timeline for.

“But in Southern California, many of us already are drinking treated wastewater — at least, indirectly,” the station added. “Places like Orange County, the Chino Basin and coastal Los Angeles have been blending treated wastewater with groundwater for years. But the difference is, the treated sewer water has been sitting in a reservoir or underground aquifer before it gets delivered to our tap. That means the water is diluted, and it also gives water managers time to wait for lab results from the wastewater treatment plant, and make last minute changes if something goes awry.” 

Fish or foul

At the same time as it has warmed up to sewer water, however, the board has unsettled the water debate still further by pushing for more aquatic protections for fish. According to its new plans, “the amount of water in the San Joaquin River and its major tributaries that would remain available for fish during certain times of the year would more than double to a suggested starting point of 40 percent of the river water from nearly 20 percent,” according to the Wall Street Journal.

“Right now, around 80 percent of the river water is diverted for use by farms and cities,” the paper noted. “The diversions have helped sustain some communities through the state’s five-year drought, but have left fish vulnerable. Officials of the regulatory agency said the increases were needed to help restore endangered salmon and steelhead, populations of which have plummeted. Some tributaries fall to as low as a trickle in places.”

The eyebrow-raising news deepened rifts with farmers and others desperate to return as close to pre-drought levels of use as possible. Merced County supervisor Deidre Kelsey, describing herself as “kind of aghast,” told BuzzFeed News the plan was “so preposterous” that it “can’t work. Unless everybody picks and moves out of the valley.”

Tunnel trouble

The fish issue has not created the only impasse in California’s long-term plans for protecting and managing its water resources. In a disappointment for supporters of an ambitious plan to send Delta water underground toward Southern California consumers, a financially discouraging report requested by Sacramento recently came to light. “Giant tunnels that Gov. Jerry Brown wants to build to haul water across California are economically feasible only if the federal government bears a third of the nearly $16 billion cost because local water districts may not benefit as expected,” the Associated Press reported, citing the unreleased analysis, which was commissioned last year.

“Further, no local water districts have agreed to pay their slated share for the tunnels because of uncertainty over regulatory approval and whether it would be worth the expense for them. Spending on the project has become the subject of an ongoing state audit and federal financial review. With districts balking, the state for the first time is dipping into public funds — fees paid by users of existing state water projects — to get the project through the planning phase, state spokeswoman Nancy Vogel told The Associated Press last month.”

The California Supreme Court cleared a big obstacle to Gov. Jerry Brown’s plan to tunnel more Delta water out of Northern California, allowing the Southland’s Metropolitan Water District to proceed with the purchase of estuary islands that would be key to speeding up construction. 

“The previous owner, Delta Wetlands, an affiliate of a Swiss insurer, had wanted to build reservoirs on the islands to market water to areas south of the Delta,” according to the Sacramento Bee. “The Supreme Court’s ruling doesn’t settle Metropolitan’s legal fight over the pending sale,” however, as the Bee observed, allowing San Joaquin’s lawsuit to go forward along with a separate suit arguing “that Delta Wetlands signed a contract that requires future buyers to abide by the negotiated settlements.”

Nevertheless, Brown’s plan has already gained strength under the ruling. “Two of the islands are in the path of the proposed $15-billion tunnel system, a project that MWD supports,” the Los Angeles Times noted. “MWD ownership of the islands would eliminate the need for eminent domain proceedings and provide easy access for construction crews on part of the project route.”

Environmental uncertainty

Still, a somewhat cagey WMD quickly left the fate of the tunnel project, which would promise a massive and controversial undertaking even under the best circumstances, up in the air. “An MWD spokesman reiterated Friday that the agency has not proposed a project for the land,” the Times reported.  

“In the past, the district has said the 20,000 acres could be converted to fish and wildlife habitat or used to store materials for emergency levee repairs. They have also said the islands could be used to provide access for the construction of the tunnel system, which would carry Sacramento River water under the delta to the pumping operations that send supplies south.”

The court decision marked yet another turn in fortunes for the proposed deal, reversing a lower court’s own prior change of course. “One day after lifting a temporary order that blocked the sale, the state’s Third District Court of Appeal reinstated the stay, preventing the big Metropolitan Water District from completing the $175 million purchase of the islands,” as the San Jose Mercury News reported.

In addition to eminent domain and breach of contract issues, MWD quickly faced staunch opposition to the prospect of tunnel construction on environmental grounds. Opponents, including “Contra Costa and San Joaquin counties, environmentalists, and Delta land owners,” argued “the tunnels will be used to export more Delta water to Southern California, and they assert that an environmental impact report should be done before the land sale is allowed,” the Mercury News added. In response, MWD claimed “there is no reason to stop the sale nor require an environmental report because no formal plan has been filed to use the island properties in a water project.”

Racing the clock

For now, that argument has helped suffice to keep the deal moving forward. But by the time all the issues and controversies surrounding the ownership and use of the islands have finally been adjudicated, the political landscape in Sacramento could well be remade. Officials told the Times it could take “months or even years until all the legal challenges to the purchase are resolved,” placing the go-ahead for Brown’s tunnel project outside the reach of Brown himself, who is termed out of the governor’s office this year.

But Brown has moved perhaps as decisively as possible to hurry things along, bringing on former Clinton secretary of the Interior Bruce Babbitt to tip the Bay Area scales in Brown’s favor. Babbitt has remained “friends with Sen. Dianne Feinstein, among the most influential voices on the topic, and has access to partisans in the San Joaquin Valley and in Southern California,” Dan Morain recently noted at the Bee. “One of Babbitt’s chief aides at Interior was Jay Ziegler. Now, Ziegler is policy director for The Nature Conservancy, one of the most influential environmentalist groups on water issues. In the Clinton years, Babbitt’s undersecretary was John Garamendi. As the Democratic congressman who represents the Delta, Garamendi is a pointed critic of Brown’s tunnel project.”