On January 16, a Sacramento court ruled that the California Department of Water Resources (DWR) lacks the authority to issue revenue bonds to finance the embattled Delta Tunnel, AKA Delta Conveyance Project.
Kenneth C. Mennemeier, Jr., Judge for the Sacramento County Superior Court, denied DWR’s request for an order “validating” bond resolutions that would have financed the project.
“Like its failed predecessors, the DCP would divert water from the Sacramento River near the Delta communities of Hood and Courtland out the Sacramento-San Joaquin Delta for export to portions of the Bay Area, South San Joaquin Valley and Southern California,” according to a press release on behalf of the counties of San Joaquin, Contra Costa, Solano, Yolo, Butte and Plumas and related water agencies
These counties, Sacramento County and their related water agencies, among other litigants, challenged DWR’s authority to issue an unlimited amount of bonds to finance the DCP.
The Court agreed with the Counties and Agencies, ruling that “DWR exceeded its delegated authority when it adopted the Bond Resolutions, which purported to authorize the issuance of the Delta Program Revenue Bonds.”
In reaching this conclusion, the Court rejected DWR’s claim to almost unlimited authority in such matters, ruling that the Water Code “does not give DWR carte blanche to do as it wishes.”
“For DWR to act,” said Mennemeier, “it must have delegated authority. Although the Legislature plainly delegated authority to DWR, it did not delegate infinite authority.”
DWR’s attempted to tie the bond resolutions to a purported “Delta Program.” The Court rejected this gambit, stating:
“In plain words, the problem with DWR’s definition of the ‘Delta Program’ is that [it] is untethered to the objectives, purposes, and effects of the Feather River Project of the CVPA,” Mennemeier wrote. “Since DWR lacks the authority to adopt the Delta Program,” as DWR had defined it, “it necessarily follows that DWR lacks the authority to issue revenue bonds to finance the Delta Project.”
Attorneys Thomas Keeling and Roger Moore represented the Counties and Agencies (other than Sacramento). Moore described the Court’s Judgment as “plainly correct” and “yet another nail in the coffin of this grotesquely misconceived and outlandishly expensive taxpayer boondoggle.”
“This is a victory for the Counties and Agencies, for the taxpayers, for the environment, for Delta farmers and businesses, and for common sense,” said Keeling and More.
Click here for the judgement.
In a statement, Bob Wright, Counsel for Sierra Club California and Restore the Delta Board Member, explained the significance of the court decision:
“The decision made by the Sacramento County Superior Court held that DWR exceeded its authority in August of 2020 when it adopted Bond Resolutions to authorize the issuance of Bonds to pay for the construction of the Delta Conveyance Project. This is good news for Delta residents and users protecting the impaired and fragile Delta from the destruction that would be caused by diverting significant freshwater flows away from the Delta into a tunnel for export. It is also good news for ratepayers and taxpayers who would be hit with the many billions of dollars this expensive boondoggle would cost.
DWR has gone to the extent of approving the project on December 21, 2023, when it will not be issuing a cost-benefit study intended to inform ratepayers and taxpayers if the project makes any financial sense until the spring or later. No thinking individual would choose which house or car to buy without considering the cost. DWR is trying to pull a fast one on Delta residents, users, and the ratepayers and taxpayers who would pay for the tunnel project.
Now, DWR will have to get either the Legislature or the appellate courts to help it in its efforts to damage the Delta with one hand and take money from ratepayers and taxpayers with the other hand.”
You can bet that California Governor Gavin Newsom will try to get the Legislature or the appellate courts to assist him in his efforts to build the Delta Tunnel, a project opposed by many California Indian Tribes, Southern California ratepayers, Central Valley farmers, environmental justice communities, 7 California counties, Southern California ratepayers, recreational anglers, commercial fishermen, conservationists and Delta businesses.
The Governor is pushing the tunnel project at a time when the San Francisco Bay-Delta Estuary is in its worst ecological crisis in history, largely due to water exports and the oversubscription of water in California.
Sacramento River fall-run Chinook salmon salmon populations, along with the Klamath/Trinity salmon runs, have collapsed, resulting in the closure of ocean and river salmon fishing in California last year and probably again this year.
Massive water diversions south of the Delta to agribusiness oligarchs and water brokers and abysmal state and federal water management of reservoirs and Central Valley rivers have also pushed endangered Sacramento River winter-run and spring-run Chinook salmon closer and closer to extinction.
Meanwhile, endangered Delta Smelt, an indicator species that demonstrates the health of the estuary ecosystem, are now virtually extinct in the wild. Zero Delta Smelt were collected in the CDFW’s Fall Midwater Trawl Survey for the sixth year in a row in 2023: www.dailykos.com/…
Once the most abundant species in the entire estuary, the Delta Smelt population has plummeted due to massive water diversions from the Delta, combined with toxics, water pollution and invasive species.
Disparaged as a “little minnow” by agribusiness oligarchs, Big Ag-owned politicians and right wing talking heads like Sean Hannity, the important role this fish plays in the ecosystem can’t be overemphasized.
”Delta Smelt are the thread that ties the Delta together with the river system,” said Caleen Sisk, Chief of the Winnemem Wintu Tribe. “We all should understand how that affects all the water systems in the state. They are the irreplaceable thread that holds the Delta system together with Chinook salmon.”
The 2 to 3 inch fish, found only in the Delta, is an “indicator species” that shows the relative health of the San Francisco Bay/Delta ecosystem. The Delta smelt is listed as “endangered” under both the federal Endangered Species Act and the California Endangered Species Act.
When no Delta Smelt are found in six years of a survey that has been conducted since 1967, the estuary is in a serious ecological crisis
“No Delta Smelt were collected at any stations from September through November,” according to Erin Chappell, Regional Manager, Bay Delta Region-3 to Brooke Jacobs, CDFW Branch Chief, and other CDFW staff on December 21. “The 2023 September- November index (0) is tied with 2016 and 2018-2022 as the lowest index in FMWT history.”
She said the absence of Delta Smelt catch in the FMWT is “consistent among other surveys in the estuary.” For example, the Enhanced Delta Smelt Monitoring (EDSM) survey of the U.S. Fish and Wildlife Service (USFWS) caught only 5 Delta Smelt among 10 sampling weeks (between 9/4 and 11/10) comprised of 1,360 tows (U.S. Fish and Wildlife Service 2023).
The near-extinction of Delta Smelt in the wild is part of the larger Pelagic Organism Decline (POD) caused by massive water diversions from the Delta by the state and federal water projects, along with toxics, water pollution and invasive species.
Between 1967 and 2020, the state’s Fall Midwater Trawl abundance indices for striped bass, Delta smelt, longfin smelt, American shad, splittail and threadfin shad have declined by 99.7, 100, 99.96, 67.9, 100, and 95%, respectively, according to the California Sportfishing Protection Alliance.
Taken as five-year averages (1967-71 vs. 2016-20), the declines for striped bass, Delta smelt, longfin smelt, American shad, splittail and threadfin shad are 98.1, 99.8, 99.8, 26.2, 99.3 and 94.3 percent, respectively.
Unless Gavin Newsom and the Legislature change direction, fish extinction and the destruction of a once robust, fish-filled estuary will be be their real “environmental legacy.”