Some Delta groups and local lawmakers are decrying language in a U.S. House of Representatives spending bill that would make the California WaterFix immune from judicial review.
The Interior, Environment, and Related Agencies subcommittee of the House Committee on Appropriations added a rider to its funding requests for the 2018-19 fiscal year specifically regarding the long-debated plan to pump water from the Delta to customers in the Bay Area and Southern California.
Section 437, called California Water Infrastructure, reads: “Notwithstanding any other provision of law, the Final Environmental Impact Report/Final Environmental Impact Statement for the Bay Delta Conservation Plan/California Water Fix (81 Fed. Reg. 96485 (Dec. 30, 2016)) and any resulting agency decision, record of decision, or similar determination shall hereafter not be subject to judicial review under any Federal or State law.”
“I think it’s a crazy piece of legislation,” said John Nomellini, a Stockton lawyer and counsel for the Central Delta Water Agency, in an interview Tuesday. “It raises all kinds of constitutional issues and other things. It’s something unbelievable that would come out of the process.”
The Central Delta Water Agency was one of the organizations — along with San Joaquin County, the South Delta Water Agency, and Contra Costa, Solano and Yolo counties — that filed suit Aug. 21 against the state Department of Water Resources to stop the California WaterFix, which includes two tunnels that will pump water from the Delta.
Rep. Kenneth Calvert, R-Corona, is the chairman of the subcommittee and released a statement about why the language came out of his committee as part of the proposed federal budget.
“Few infrastructure projects in the history of our nation have gone through as much scrutiny as the California Water Fix,” Calvert wrote. “After more than a decade of studies and more than 50,000 pages of environmental documents, all of the project’s stakeholders have had a plethora of opportunities to express their thoughts and concerns. The tough decisions about the California Water Fix have been made by Gov. Brown, Democrat and Republican legislators, and a host of water officials, and now we must move forward with the project. It’s long past time to give Californians the reliable water system they deserve.”
Supervisor Bob Elliott, who represents Tracy and Mountain House, said the tunnels do nothing to create a more stable water infrastructure and could harm the Delta by taking away fresh water and possibly leading to more salt and silt intrusion into the system of streams and rivers.
“The California WaterFix, the twin tunnels, doesn’t fix the problem. It takes the best water from the northern region,” Elliott said Tuesday.
Beyond the potential ecological damage and withdrawal of Delta water, Elliott said the rider was not good public policy.
“It’s more than just a local control issue. But from the local control standpoint, people should have and do have the right to file suit in the case where they think an action by the state is unjustified,” he said, adding that he stands with the county’s participation in the lawsuit against the state. “I am extremely opposed to that rider. I hope it is entirely removed.”
Rep. Jeff Denham, R-Turlock, did not directly address the appropriations rider in a statement released Tuesday. He wrote that a bill he introduced, which would authorize a pilot project to help finance development of water resources infrastructure in reclamation states including California, was the right way to go.
“We should not be spending more money on conveyance when we have no new water to convey,” Denham wrote. “We must invest in water storage. We must pass the New WATER Act.”
The New WATER Act, House Resolution 434, was introduced in January 2017 and was referred to the Subcommittee on Water, Power and Oceans in February 2017. No action has been taken on the bill since then.
Rep. Jerry McNerney, D-Stockton — who represents Mountain House, part of Tracy and the southern Delta — wrote in a statement released May 17 that the budget rider was designed to go around the voters.
“This is another attempt to force the ill-conceived tunnels proposal on Californians, and undermine state and federal law — specifically those concerning the protection of our environment,” McNerney wrote. “Mandatory environmental impact analyses are essential in determining whether a project can move forward. Prohibiting the option for judicial review of the WaterFix environmental impact studies would eliminate a critical check in our system and help clear a path for the tunnels to proceed without further oversight. This provision has no place in a crucial funding bill, and was dropped in as a last-ditch effort to circumvent the voices of Californians throughout the state who have said ‘no’ to the disastrous tunnels plan.”
According to the House of Representatives website, the subcommittee’s appropriation was due for a vote before the entire Committee on Appropriations on Tuesday, but it has been “postponed and will be rescheduled at a later date.”
Nomellini believes that if the language were passed as part of the new budget, it would be challenged in court, possibly all the way to the Supreme Court.
“It certainly sets a bad precedent to have the federal government pre-empt states’ rights and state procedures with regard to water rights. All the western states ought to be up in arms about this kind of thing,” he said. “What western state that has resources wants Washington to pre-empt their control over that?”