The new route proposed for Gov. Jerry Brown's giant Delta water-diversion project may conflict with direction from California voters, who spent $35 million in 2001 to acquire part of the new route as permanent wildlife habitat.
In a major revision of the Bay Delta Conservation Plan, as the project is known, state officials announced Aug. 15 that the pair of 40-foot-diameter water tunnels would shift east to pass under Staten Island, a 9,000-acre tract of farmland. Hundreds of acres of construction are planned on the surface.
Twelve years ago, California taxpayers spent $35 million to buy Staten Island for a very different purpose: as a permanent refuge for sensitive wildlife, especially the greater sandhill crane, one among dozens of threatened species in the Sacramento-San Joaquin Delta.
Half the money came from Proposition 204, a billion-dollar bond measure approved by voters in 1996 to protect habitat, watersheds and clean drinking water. The measure specifically forbid any of the bond proceeds being spent for "any water conveyance facilities."
The money went to the nonprofit Nature Conservancy, which bought the island from its private owners and continues to manage it for farming and wildlife. The investment bought taxpayers a conservation easement – legally recorded land-use restrictions – written to protect the island's habitat "forever."
The placement of the new tunnel route was greeted with outrage and disbelief among some environmental groups and bird enthusiasts. They say it not only creates a new battlefront for the controversial project, but also calls into question the sanctity of taxpayer-funded habitat protections.
"It's a commitment to principle and permanence when those easements are put in place," said Huey Johnson, president of Resource Renewal Institute, a Mill Valley group that operates as a kind of watchdog for conservation easements.
Johnson is former president of The Nature Conservancy. He was also secretary of the state Natural Resources Agency in Brown's first term as governor.
"The idea that a politician can say, 'Oh, we're going to run our tunnels through Staten Island,' it's just damned unbelievable," he said.
The proposed new route was the state's effort to respond to criticism from Delta residents, who contended the route initially proposed for the tunnels threatened several small towns along the Sacramento River. Shifting the tunnels east also avoids some harmful effects on Stone Lakes National Wildlife Refuge, important crane habitat in its own right.
John Laird, the current secretary of the state Natural Resources Agency, said cranes will be better off after the project is built, even with construction taking place on Staten Island. Indeed, the Endangered Species Act permits necessary to build the tunnels require this.
"It is our goal that we will recover the sandhill crane, and there will not be significant impacts to their population with anything that happens with the project," said Laird, whose agency oversees the project.
Cranes' habitat called key
The Bay Delta Conservation Plan is an attempt to resolve decades of conflict over water supplies and endangered species. The estuary is the largest on the West Coast of the Americas, and provides drinking water to two-thirds of California's population.
Most of that group lives in the Los Angeles-San Diego metropolis, where Delta water is diverted by an elaborate system of state and federal pumps and canals. The system kills millions of fish every year, either by reversing natural water flows in the estuary or grinding them up in the pumps.
The conservation plan proposes to move the diversions upstream on the Sacramento River. Three new intakes are proposed in the Courtland area, each with modern fish screens designed to kill fewer fish. They would move water into two massive tunnels, each 30 miles long and 150 feet beneath the surface. A draft proposal is set for public release by Oct. 1.
The cost is estimated at $15 billion for intake and tunnel hardware. This would be funded by bonds issued by the California Department of Water Resources, and repaid by water ratepayers who benefit from the project.
The balance of the $25 billion cost would go to 100,000 acres of habitat restoration. This is how state officials intend to "recover" the sandhill crane and other species from their threatened and endangered status.
Greater sandhill cranes are thought to be the oldest known bird species, with fossil records dating back 10 million years. The group that winters in the Sacramento Valley is not a unique subspecies but is considered a unique population because it does not mix with cranes east of the Sierra Nevada.
The birds breed in the spring and summer in Oregon, Washington and Canada but spend most of each year in the Sacramento Valley, where they rest and feed in wetlands and flooded farm fields.
Cranes are known to bond with a particular location and return to the same place year after year. They are also skittish and easily disturbed by noise, vehicles and other human activity.
A 2002 study of cranes on Staten Island called preserving the island "imperative" because it was already vital to the species and also relatively isolated and undisturbed compared to other habitats.
Other facilities proposed on Staten Island include:
Four vertical shafts to service the tunnels, each with a surface work area as large as 90 acres.
Two large disposal areas to process material dug from the tunnels, potentially several hundred acres in size.
New high-voltage power lines.
A barge landing on the island's southern shore.
"Losing any significant part of Staten Island would at this point be a major blow to the West Coast population of cranes," said Mike Eaton, the former Delta region manager at The Nature Conservancy who negotiated the island's sale and is now active with Save Our Sandhill Cranes, a Sacramento group.
State DWR has dual role
The conservation easement on Staten Island presents a challenging set of circumstances, said Russ Shay, public policy director at the Land Trust Alliance in Washington, D.C., an authority on conservation easements. This is largely because the Staten Island easement is enforced and held in trust on behalf of the public by the California Department of Water Resources, which is also the lead agency proposing the tunnels.
The Nature Conservancy owns the island, and DWR is responsible for ensuring the conservancy complies with the conservation easement.
This happened because DWR awarded the other half of the money to buy the island in 2001, which came from Proposition 13, a $2 billion flood protection, clean water and habitat bond measure approved by voters in 2000.
Shay said he has never heard of a conflict quite like this.
In most cases, he said, a conservation easement is held by a nonprofit group to protect land owned by the government or a private party. In this case, the roles are reversed, and DWR may have the power to ignore or reinterpret the easement – even condemn land owned by the conservancy – subject only to legal challenge.
There is no independent agency that regulates or enforces conservation easements, Shay said. They are nothing more or less than a legal contract between the signatories.
"There are all sorts of strings attached, and DWR has multiple responsibilities," Shay said. "One would think, in a conservation sense, they are governed by laws and regulations that are very specific because the people of California voted for the money for particular purposes."
Former state Sen. Mike Machado was a co-author of both propositions that funded the Staten Island purchase. He said it was no accident the language in Proposition 204 prevents spending the money on "any water conveyance facilities."
At the time, he said, there was pressure from Delta water diverters to set aside money for just that purpose, and the language was part of a political compromise he helped negotiate. Machado believes using the island for a water conveyance project would violate the voters' wishes.
"We wanted to make sure nothing would be used out of that (ballot measure) for conveyance," said Machado, a Democrat who represented the Delta in the Legislature for 14 years. "My perspective is, the state ought to be following the exact laws and what was stated in the proposition."
DWR spokeswoman Nancy Vogel said the project must be designed not to interfere with the conservation easement. But she disagreed with Machado and said there is "no connection" between the tunnel project and the voter-approved bond funds.
"Because Prop. 204 is not a source of funding for the conveyance facility, any limitations related to the eligibility requirements of Prop. 204 do not apply," she said.
After news broke about the new tunnel alignment on Aug. 15, Nature Conservancy officials released a statement expressing "serious concern" and stating the group "will not voluntarily agree" with the new tunnel route.
Mike Sweeney, executive director of The Nature Conservancy of California, said the group will evaluate DWR's plan to restore cranes before passing judgment. But it remains wary.
"We're not going to roll over here and just let them do whatever they want," Sweeney said. "We protect our property interests vigorously, and we'll do that in this case. We've got conservation objectives to maintain. It's a public trust we take very seriously."
Contact The Bee's Matt Weiser at (916) 321-1264 or via Twitter @matt_weiser.