Water Project Could Be Facing Expensive Delays and Legal Challenges That Will Jack Up Costs –
Water Project Could Be Facing Expensive Delays and Legal Challenges That Will Jack Up Costs – Even if approved, the project has the potential to be tied up in the courts for some time. New criteria for Delta inflow and outflow appear to severely limit the potential for any further claims on upstream river water.
Public documents show numerous challenges to Davis’ application, which will be heard by the State Water Resources Control Board (SWRCB) at their January 18, 2011, meeting.
According to the record, the SWRCB “intends to conduct an evidentiary hearing on the pending water right applications” in which they will “receive evidence relevant to determining whether the State Water Board should approve, subject to terms and conditions, water right Applications 30358A, for the City of Davis (Davis) and University of California at Davis (UCD), and Application 30358B, for the City of Woodland (Woodland).”
No less than six protests were filed against the application. However, a number of these were dismissed. One outstanding protest remains from the California Sportfishing Protection Alliance (CSPA).
According to the notice from the SWRCB, “The State Water Board’s decision to approve Applications 30358A and 30358B must be based upon evidence in the record.”
They look to address the following issues:
1. Is there water available for appropriation by each of the applicants? If so, when is water available and under what circumstances?
2. Will approval of any of the applications result in any significant adverse impacts to water quality, the environment or public trust resources? If so, what adverse impact or impacts would result from the project or projects? Can these impacts be avoided or mitigated to a level of non-significance? If so, how? What conditions, if any, should the State Water Board adopt to avoid or mitigate any potential adverse impacts on fish, wildlife, or other public trust resources that would otherwise occur as a result of approval of the applications?
3. Is each of the proposed projects in the public interest? If so, what conditions, if any, should the State Water Board adopt in any permits that may be issued on the pending applications, to best serve the public interest?
4. Will adoption of certain terms in draft Permits for Applications 30358A and 30358B (attached at the end of this Notice) be sufficient to dismiss the outstanding protest?
On August 16, the California Sportfishing Protection Alliance filed a protest arguing that “According to the Delta Flow Criteria Report, we need to reduce the total annual diversions on the Sacramento River by, roughly speaking, 5,000,000 acre-feet per year in average years to “halt population decline and increase populations of certain species.”
Thus, “Under such circumstances, the Board needs to explain exactly where it will find 44,000 acre-feet per year of water available to service Davis, Woodland, and U.C. Davis’s Applications 30358A and 30358B, or, for that matter, any available water to service these diversions”
Citing the Delta Flow Criteria Report, the CSPA argues that “recent Delta flows are insufficient to support native Delta fishes for today’s habitats.” Moreover, “In order to preserve the attributes of a natural variable system to which native fish species are adapted, many of the criteria developed by the State Water Board are crafted as percentages of natural or unimpaired flows.”
These criteria are as follows: 75% of unimpaired Delta outflow from January through June; 75% of unimpaired Sacramento River inflow from November through June; and 60% of unimpaired San Joaquin River inflow from February through June.
Writes the CSPA, “75% of the unimpaired November through June inflow on the Sacramento needs to be passed through the Delta as outflow to “preserve the attributes of a natural variable system.” At present, the number is as low as 30%, and the April through June period averages 50% of the unimpaired Sacramento River flow.”
The letter continues, “CSPA agrees with your letter of July 16 that the proposed new diversions by Davis, Woodland and U.C. Davis would be area-of-origin diversions. However, there is no evidence that this provides protection to fish and wildlife resources any more than would the standard permit terms. You state on page 2 of your letter: “If there is insufficient water to satisfy all demands, the DWR and USBR must either reduce its [sic] 1 exports or increase releases of previously stored SWP and CVP water over and above the amount required to maintain instream flows in order to support its exports.”
This protest remains a serious threat due to current state regulations, particularly the Delta Flow Criteria that was just established in August and the potential that the issue could get tied up in the courts.
On August 3, 2010, the SWRCB adopted a resolution approving a report determining new flow criteria for the Sacramento-San Joaquin Delta ecosystem necessary to protect public trust resources, pursuant to the Board’s public trust obligations in compliance with Water Code section 85086.
These were adopted following the November 2009 passage of SB 1, which contains the Sacramento-San Joaquin Delta Reform Act of 2009 which “establishes a Delta Stewardship Council (Council), tasked with developing a comprehensive, long-term management plan for the Delta, known as the Delta Plan, and providing direction to multiple state and local agencies that take actions related to the Delta.”
The comprehensive bill package also sets water conservation policy, requires increased groundwater monitoring, and provides for increased enforcement against illegal water diversions.
At this point it is unclear what the SWRCB will do. However, the newly-adopted Delta Flow Report needs to be taken seriously, because even if the SWRCB ultimately approves the application, the CSPA or anyone other group could potentially tie this up in court for years.
That puts the entire first step of implementing the water policy in serious jeopardy. However, none of this has been discussed publicly, even though the city should have known about these hurdles since January.
Indeed, there is no mention of this challenge in this week’s agenda item that would set into further motion a $100 million wastewater treatment plant.
Costs are a huge issue here, as the city has taken steps to reduce the capital costs of constructing both projects. However, the fact is that the city would most years still have to purchase river water from Conaway Ranch – now owned by Tsakopoulos. The city has yet to establish what this cost would be, but it is likely to be expensive, variable and also unpredictable.
The city needs to take a step back and review its plans, and discuss the new Delta Flow Criteria Report and its impact on our water use and rates.
The City and Council have treated bringing Sacramento River water into the City as a “given,” they have not planned for the real cost of the water, and that may not address emergency water sources during a protracted drought.
But more importantly, given the state water regulations, what happens if the SWRCB decides they cannot risk a lawsuit and further depleted outflow to the Delta? Moreover, why was this potential problem not addressed? While the law is relatively new, the issue is something that the Vanguard has raised and has never been addressed by the city – that of the impact on the Delta.
Should the surface water application be rejected by the SWRCB, the City of Davis will have a new and decorated tank on Mace Road, that already has the appearance of a boondoggle with no water to put in it. Meanwhile, we are proceeding with a wastewater treatment facility that might suddenly have to incorporate design features that deal with a much saltier effluence.
We have reason to believe that the city is already understating the costs of the surface water project, but now we must ask how much cost and importance be placed on diluting and then removing and safely disposing of the salt by the water treatment facility.
From the start, the Vanguard has been concerned that this project has been rushed through with not enough attention to potential road blocks, which now may be coming to pass. The startling thing is that none of this, to our knowledge, has been publicly discussed.
—David M. Greenwald reporting
One thing we can be sure about the price of water is that it will go up. The rates all of us pay are too low given future resource constraints. Water rights will be a huge issue as the 21st century progresses.
Given that, it is indeed surprising that our City has not factored this in. And if we have to buy water from one private owner, isn’t there a serious possibility that they will hold the City hostage with exorbitant rates?
As I said before, expect your water/sewer rates to as much as quadruple…
One thing we can be sure about the price of water is that it will go up. The rates all of us pay are too low given future resource constraints. Water rights will be a huge issue as the 21st century progre
The residents of California, Davis included, have yet to come to grips with this fact. Folks are crying about monthly increases of $25 month – this will likely be chump change by 2025 and beyond. Water will be the most valuable resource in CA, and the cities will be forced to purchase water rights at what feels like exorbitant rates. And, we will farm fewer acres in CA, because the water is too valuable to be used on farm land.
The city will not be forced to purchase from one private owner – there are other entities that will be able to sell water to Davis.
Finally, David – do you have information that the sale to AKT has closed? My understanding was that it has not yet closed.
The point to consider is not really who sells Davis water but if there will ever be any water to buy. CSPA suggests the Sac is overused by 5,000,000 acre feet.
dmg: “The City and Council have treated bringing Sacramento River water into the City as a “given,” they have not planned for the real cost of the water, and that may not address emergency water sources during a protracted drought.”
How many of us have repeatedly raised the question “Will the Sacramento River water really be there when it is needed if we build and pay for the surface water project?”. Never have we the public gotten a specific answer to that question. My concern is that the JPA will devise a “surface water project” for which citizens will pay millions of dollars we cannot afford, and it will not result in delivering water when we need it. As Sue Greenwald has so often said, this is a train wreck waiting to happen…
I think I’m just going to start calling Sue Greenwald by the name Cassandra until we get a council that listens to her well researched, well thought out, and on point analyses.
“this project has been rushed through…”
Yes, it’s been under discussion for over twenty years. There have been numerous public city council actions, repeated studies; Sue Greenwald arranged for experts to review the water and sewer issue. The consistent conclusion has been for the water project to go forward. Several months ago I think you used the term “rushed headlong” to describe this process.
Just curious: if a decade or so of public hearings and discussions is “rushed,” then how long would you like the process of developing a water project to take?
The council is acting prudently in going forward one step at a time. I’ll let Sue speak for herself in regard to how she has voted on this issue, but I do thank her for providing the impetus to bring the outside consultants in to review the need for pursuing both the water and sewer projects simultaneously. It is likely that developing the water project first will obviate the need for the sewer project, or at least reduce the scope of it.
As noted, there are other suppliers if water has to be purchased. The CSPA protest raises some interesting issues, but as you note all the other protests were dismissed. Should the board rule in favor of the CSPA it would send a shock wave throughout the state water agencies, as it would up-end the “area-of-origin diversions” priority that has been pretty well established, as I understand it, in California water use. Many interested parties would likely join a lawsuit very quickly to overturn that ruling. That doesn’t mean it couldn’t happen, but we’ll know in January 2011.
In the past, you’ve argued that the city of Davis should apply for a waiver to the clean water regulations that are the basis of the water treatment requirements. Now you are arguing that all planning for surface water should cease until every legal impediment is resolved?
Don Shor: “The council is acting prudently in going forward one step at a time. They’ve done it all in public, over many, many public council meetings. I’ll let Sue speak for herself in regard to how she has voted on this issue, but I do thank her for providing the impetus to bring the outside consultants in to review the need for pursuing both the water and sewer projects simultaneously. It is likely that developing the water project first will obviate the need for the sewer project, or at least reduce the scope of it.”
Will doing the water project first “obviate the need for the sewer project or at least reduce the scope”? It sounds to me like the city has decided to do both projects NOW. Not only that, when the two consultants were on board to give advice, the Conaway Ranch was going to be a recepticle for gray water discharge so that the scope of the sewer project could be reduced. Now that Conaway Ranch has been sold, it is my understanding that this option is off the table. This process may have been under consideration for a long time, but major changes have occurred in the last one to two years. Even if we do the surface water project, it is not clear whether water that Davis needs will even be available during the summer months when it will be needed. If not, what then? We will have paid for a huge surface water project that will essentially not deliver on its promises…
Don:
This is an interesting point: “Should the board rule in favor of the CSPA it would send a shock wave throughout the state water agencies, as it would up-end the “area-of-origin diversions” priority that has been pretty well established, as I understand it, in California water use.”
However, is that not the clear implications of SB1 and the resulting findings by Delta Flow Report?
I mean what will be the impact of taking more and more water out of the Sac River and out of the delta? Isn’t that part of the whole water controversy?
In terms of my rushing things through comment, what I’ve observed in the last few years is that council has had apprehensions, but each time staff has managed to kick the ball forward telling council they can decide for sure later, but they have to keep the timeline in order. The problem is now they are on the verge of spent real money and we still are not sure there can be a project and even if there is a project whether it will yield water.
I agree with you that the threat may not be enough to stop the planning process, but at the very least they ought not spent money until they know better where things stand. Moreover what is the back up plan if this does not work?
From http://www.somachlaw.com:
“Senate Bill 1
Senate Bill 1 (SB 1) is focused on the Delta, establishing new policy for the Delta, providing for a new governance structure, and calling for various near-term or early actions to address ecosystem and water supply-related problems in the Delta.
To that end, SB 1 reconstitutes the Delta Protection Commission and provides the Commission with a role in developing an economic sustainability plan for the Delta region. The Commission can also act as a facilitating agency for implementing joint habitat restoration or enhancement programs within the primary zone of the Delta. The Commission can also comment and provide recommendations on matters before the newly established Delta Stewardship Council (discussed below) related to cultural, recreational, and agricultural values in the Delta. The Commission is also directed to make recommendations to the Legislature, prior to July 1, 2010, for expanding the primary zone of the Delta in several enumerated areas.
SB 1 also creates the “Sacramento-San Joaquin Delta Conservancy” (Conservancy). The Conservancy is a new State agency within the Resources Agency, whose board is comprised of voting and non-voting members from the State and local levels. The Conservancy is tasked with promoting and supporting the environmental protection of the Delta and the economic well-being of Delta residents, and is identified as the primary State agency to implement ecosystem restoration projects in the Delta.
SB 1 establishes the Delta Stewardship Council, which is comprised mainly of members appointed by the Governor and Legislature, with one local Delta representative, the chair of the Delta Protection Commission. The Council’s main function is the creation of the new “Delta Plan.” The Delta Plan is a new, long-term management plan for the Delta, with the ultimate goals to restore the Delta ecosystem and provide a reliable water supply for certain parts of California. Most activities within the Delta and some significant activities impacting the Delta would be measured against this new plan for “consistency.” To aid in its functions, the Council is also tasked with creating the new Delta Independent Science Board, which replaces the CALFED Independent Science Board. SB 1 also contemplates incorporation of the Bay Delta Conservation Plan (BDCP) into the Delta Plan, so long as specific criteria are met. In so doing, many Delta-related activities may eventually be measured for consistency with the BDCP.
SB 1 also mandates certain early actions. Included in these early actions is the development of new Delta flow criteria for Delta waterways, and the rapid consideration of certain physical restoration and water supply projects thought to provide real immediate environmental and water supply benefits. The Legislature also directed the State Water Resources Control Board (SWRCB) to set a schedule for completing instream flow studies for the Delta and all major rivers and streams in the Delta watershed. Some of these studies must be completed by 2012 with flows set for all major rivers and streams by 2018. In addition, SB 1 establishes the “Delta Watermaster,” which will act as an extension of the SWRCB in the Delta. The Delta Watermaster will possess the SWRCB’s enforcement powers in the Delta, and will likely be the primary enforcer of water rights.”
On Delta Flow Report:
“Draft Delta flow criteria issued
July 22, 2010
by Holly Doremus
Last year’s California water reform legislation directed the State Water Resources Control Board to issue new flow criteria for the Delta to protect public trust resources, which include but are not limited to the fish species protected by the federal Endangered Species Act. The deadline for the Board to adopt those criteria is next month. This week, the Board staff issued a draft flow criteria report, which reportedly will be considered by the Board on August 3.
The report is long and highly technical. It’s impossible to evaluate the specific criteria proposed without knowing a lot more than I do about the science of Delta flows and the ecosystem those flows support. But there are a couple of points that anyone can understand.
First, when Board staff took a hard look at the state of scientific knowledge about Delta species, they reached the same conclusion as the federal regulatory agencies that implement the ESA and the National Research Council committee that reviewed those agencies’ work: increased flows and increased flow variability are needed through the Delta, which means that diversions have to be reduced from recent levels. To quote from the report:
Restoring environmental variability in the Delta [which Board staff view as essential to protecting public trust resources] is fundamentally inconsistent with continuing to move large volumes of water through the Delta for export.
That’s obviously not going to make water users happy.
Second, the report makes every effort to minimize the impact of that conclusion and to preserve the Board’s discretion not to use these criteria for regulatory purposes. It emphasizes repeatedly that the criteria do not have regulatory significance. That comes straight from the legislation, and its why I’ve been fairly skeptical about the usefulness of this process. The report does more than point out that these criteria are not regulatory, though. It says that the Board cannot and will not use them for regulatory purposes without a broader review. This process is just to determine what the public trust resources of the Delta itself need.
In the State Water Board’s development of Delta flow objectives with regulatory effect, it must ensure the reasonable protection of beneficial uses, which may entail balancing of competing beneficial uses of water, including municipal and industrial uses, agricultural uses, and other environmental uses. The State Water Board’s evaluation will include an analysis of the effect of any changed flow objectives on the environment in the watersheds in which Delta flows originate, the Delta, and the areas in which Delta water is used. It will also include an analysis of the economic impacts that result from changed flow objectives.
In other words, just because the Board’s staff has concluded that Delta species need more water, don’t count on the Board using its authority to see that they get it.
Of course, this report represents one more expert scientific review, and its conclusions can’t be ignored by the Board or other regulatory agencies. Assuming they are adopted by the Board in August, it’s going to be interesting to see what effect these criteria have on Delta regulatory decisions.
As usual, Aquafornia has links to various news stories and reactions to the report.
Bottom line is SB1 and the Delta Flow report indicate there needs to be less diversion of water from the Sacramento-San Joaquin Delta (which would include the Sacramento River) to protect various species of fish/animals/insects. To what extent the export of water from the Delta/Sacto River will be prohibited is anybody’s guess. Furthermore, there is political maneuvering going on to ship a lot of the Delta/Sacto River water to the southern part of the state, which just complicates the issue. Yet our JPA is going to move ahead with two very, very expensive capital projects (surface water project; wastewater treatment plant upgrade) without really knowing 1) to what extent these two projects will be beneficial (Will the surface water even be available when we need it?); 2) to what extent they will be needed (To what extent do we need to upgrade our sewer plant if we don’t even know how much surface water is going to be available?).
The fly in the ointment as I see it is that the scope of the surface water project is dependant on how much Sacto River surface water is available to dilute the contaminants from our well water. Yet the JPA, from what I can tell, hasn’t the slightist idea of how much surface water from the Sacto River will be available to us. They cannot possibly know if the Delta regulatory board in charge doesn’t even know yet…
If I have misunderstood something here, someone please explain…
See map of Delta region: http://www.ppic.org/content/pubs/report/R_207JLMap1_1.pdf
Correction: “…slightest idea…”
“I mean what will be the impact of taking more and more water out of the Sac River and out of the delta? Isn’t that part of the whole water controversy? “
Clearly you don’t understand how the water cycle works. The problem is not taking water out if you put it back in. The question is going to be what will happen to the quality of the water and its impact on fish when it is returned to the delta.
Water is only lost from the river watershed if it evaporates, is turned into sugar and oxygen through photosynthesis or becomes ground water. Most of the water that Davis would use for domestic and industrial purposes would get returned to the delta. The quality of the water would be degraded if left untreated. This is why its important to treat the water to make sure it does not damage the fish as some new research has indicated that chemicals in home gardens in Sacramento could be a source of pollution that impacts the already crashed populations of fish in the delta.
Mr. Toad: “Clearly you don’t understand how the water cycle works. The problem is not taking water out if you put it back in.”
In so far as I am aware, the cities of Woodland and Davis as well as UCD will not be pumping wastewater all the way back to the Sacramento River. The treated wastewater will be discharged more locally – to the Yolo bypass I think. To pipe it back to the Sacramento River would be prohibitively expensive. Someone correct me if I am wrong…
As a homeowner in Davis, I have voted for all local tax increases in my ten plus years here. However, in the time I have been here my city fees have more than doubled. I read that the water project and sewage project could do anything from doubling to quadrupling the existing fees. I am retired and on a very modest fixed income.
Given that I gather there is some doubt as whether Davis really needs this water project–of course developers in Woodland and Davis want it–I am wondering just what the impact would be on people like me in a situation where home prices are declining significant even in Davis, and by extension the macro economic impact of such increases in fees on the peoples of Davis and Woodland (Please reference the definitive proof that we need the water project if you have it).
Further, while voting against Prop 26, I’d like an opinion as to whether this measure covers things like city fees and thus whether and what city fee increases have to go to Davis voters for a two-thirds majority for approval.
To Herman: From http://www.lao.ca.gov/ballot/2010/26_11_2010.aspx: “Prop 26 Regulatory fees—such as fees on restaurants to pay for health inspections and fees on the purchase of beverage containers to support recycling programs. Regulatory fees pay for programs that place requirements on the activities of businesses or people to achieve particular public goals or help offset the public or environmental impact of certain activities.”
It does not appear from my reading of Prop 26 that it would include water/sewer rate increases…