Delta News

‘Huge milestone’ for Delta tunnels – feds say they won’t push fish over the brink

The Delta tunnels got a crucial green light from two federal agencies Monday when scientists said the controversial project can co-exist with the endangered fish that inhabit the waters of the Sacramento-San Joaquin Delta.

In a pair of long-awaited decisions, the U.S. Fish & Wildlife Service and the National Marine Fisheries Service said the tunnels, known as California WaterFix, aren’t likely to jeopardize the continued existence of the Delta smelt, Chinook salmon, steelhead and other imperiled species.

“WaterFix will not jeopardize or threaten endangered species, or adversely modify their critical habitat,” said Paul Souza, regional director with Fish & Wildlife, which is responsible for protecting Delta smelt. Barry Thom, regional administrator at the Fisheries Service, said his agency made a similar conclusion that “the project doesn’t deepen any harm.”

The lengthy documents, known as biological opinions, represent a pivotal point for the project, which would burrow a pair of 35-mile-long tunnels beneath the Delta in an effort to re-engineer the way water flows through the fragile estuary. Gov. Jerry Brown’s administration says the tunnels would improve conditions for the fish. That would allow the federal and state pumping stations in the south Delta to deliver water more reliably to the 19 million Southern Californians and hundreds of San Joaquin Valley farmers who depend on it.

Environmentalists and others who oppose the project said they’ll continue to fight – in court, most likely. But the biological opinions bring the tunnels project a surge of momentum.

“We feel this is a momentous step toward the future,” said Michelle Banonis, assistant chief deputy director at the California Department of Water Resources.

In an updated estimate, Banonis said the project will cost $17.1 billion, including the expense of operating the tunnels and environmental mitigation. The costs, including any potential overruns, will be paid by ratepayers whose water districts receive water from the tunnels, she said.

The state completed its environmental sign-off in December, and the federal agencies have now completed their reviews for the time being. However, the scrutiny by federal scientists will continue for several more years. The Fish and Wildlife Service said Monday that a subsequent biological opinion is still needed for the lengthy construction process. Both of the fisheries agencies also will pass judgment on the operational plan, which will govern how much water will actually flow through the tunnels once the project is built.

“It’s important for us to remain vigilant – clearly we have a number of species that are imperiled,” Souza said.

A draft version of the biological opinions, released in the spring, said the fisheries agencies were concerned the tunnels would erase vital habitats for smelt and other species in the Delta even though Brown’s administration pledged to restore 30,000 acres of habitat.

In response, state officials committed to restore an additional 1,800 acres of habitat at the north end of the Delta, at a spot that was considered particularly vulnerable during the construction work. That made a significant difference in the final decision and will lead to “an increase in the abundance of fish,” Souza said.

Environmental groups, Delta farmers and other opponents say the tunnels would actually worsen the Delta’s ecosystem, degrade critical fish habitats and amount to a Southern California water grab.

“The science in this decision was cherry-picked and not representative of the true scope of harm to endangered species,” said Barbara Barrigan-Parrilla of the activist group Restore the Delta.

All signs point to a lengthy court fight.

“As far as the Delta folks go, it is a fight to the death,” said Stockton lawyer George Hartmann, who represents south Delta farmers. Hartmann said he and other lawyers will try to sue the project to a standstill.

“That’s Plan A,” Hartmann said. “There’s nothing else we can really do but fight it.”

Even with the near certainty of litigation, the tunnels project is clearly gaining steam after a decade in the planning stages. Jeff Kightlinger, general manager of the Metropolitan Water District of Southern California and a major advocate for the project, said preliminary construction work could begin next year. Actual digging of the tunnels would begin in 2021, he said. Construction is expected to take ten years.

Until recently, the project appeared to be in limbo. Farm irrigation districts in the San Joaquin Valley, which would share the costs with Metropolitan, have been reluctant to commit. Although farmers have been frustrated with limits on water deliveries because of environmental restrictions in the Delta, they’ve been uncertain on whether the tunnels would represent their salvation. Brown’s administration says the tunnels won’t necessarily mean more water but will allow the pumps to operate with fewer interruptions for fish.

Now the water agencies, under prodding from Brown’s office, have pledged to vote in September on whether to pay for the project.

The pumping stations near Tracy are so powerful, they can reverse the flow of the San Joaquin River at a crucial point, putting fish in harm’s way. By diverting a portion of the Sacramento River’s flow upstream at Courtland, and routing the water to the pumps through the tunnels, Brown’s administration says the project would eliminate most of the “reverse flow” problem.

Other regulatory hurdles remain. The State Water Resources Control Board is in the middle of months of hearings on whether the project would harm water users and the environment.

Nonetheless, Kightlinger said planning for the tunnels can go forward even before the water board makes its decision.

He and other experts said they believe the project could even survive litigation. Although tunnels opponents will undoubtedly seek court injunctions blocking the project, a judge might allow the project to proceed but could order modifications.

“I think there is the potential to go either way, depending on a number of variables,” said Jennifer Harder, a water-law expert at the University of the Pacific’s McGeorge School of Law in Sacramento. “There are circumstances under which the project may go forward, and those may exist here.”

She said judges wouldn’t necessarily decide if the project is a good idea. Rather, they would rule on whether the agencies in the project made reasonable decisions based on the evidence. “If that evidence supports the agency’s decision, the court doesn’t get to say whether it’s a good idea or a bad idea.”

Dale Kasler: 916-321-1066, @dakasler

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