Delta News

A ban on Delta tunnels lawsuits slips into federal spending plan

With the California Delta tunnels proposal facing an uncertain future, one of the state's Republican congressmen has come up with a way to help the multibillion water project, known formally as California WaterFix, reach completion: ban environmental lawsuits.

On Tuesday, veteran Rep. Ken Calvert of Riverside County released a 142-page draft spending bill for fiscal year 2019 for the Interior Department and related agencies.

Tucked into the bill, on page 141, is a brief provision that would prohibit state or federal lawsuits against "the Final Environmental Impact Report/Final Environmental Impact Statement for the Bay Delta Conservation Plan/California Water Fix ... and any resulting agency decision, record of decision, or similar determination." Calvert is the chair of the House Appropriations subcommittee on the Interior, Environment and Related Agencies.

"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," Calvert said in a statement. "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.”

California environmental groups immediately cried foul. Eric Wesselman, executive director of Friends of the River, said the Republican-controlled Congress is attempting to silence opposition to the Delta tunnels. He and other local leaders warned this could become a pattern.

"Regardless of how anyone feels about the Delta tunnels, this piece of legislation sets a dangerous precedent for California," said Barbara Barrigan-Parrilla, executive director of Restore the Delta, a tunnels opponent. "It's an end run around due process and really upends states' rights."

The controversial infrastructure proposal, championed by Democratic Gov. Jerry Brown, would construct two tunnels beneath the Sacramento-San Joaquin River Delta to connect freshwater from the river to aqueducts conveying water south.

The Brown administration argues that will improve how water courses through the estuary and help protect endangered species of fish, while also ensuring more reliable water flows from the north of the state to farms in the Central Valley and water users in the Bay Area, the arid San Joaquin Valley and Southern California.

The project has powerful boosters among agriculture interests and municipal water districts. In April, the Metropolitan Water District of Southern California, the state’s largest water district, agreed to contribute $10.8 billion to help pay for construction of the two tunnels.

But many environmental groups are opposed, while some policymakers question the project’s feasibility, not to mention the hefty $17 billion price tag.

At least 58 parties, including Sacramento-area local governments, have filed more than a dozen lawsuits challenging various aspects of the project in recent years. If it becomes law, Calvert's provision would make moot many existing legal challenges to the project. And it would prevent future lawsuits challenging environmental determinations.

First, however, the legislation has to advance through Congress. It is likely to face resistance from Democrats, who could stall it in the Senate. Congressional Republicans could, however, try to tack the language onto a future omnibus spending package, which would put the onus on Democrats to strip it out during negotiations.

Legal challenges can certainly slow the project’s advance in the meantime. But the tunnels’ foes face an uphill climb as they pursue lawsuits on environmental grounds. California judges rarely issue injunctions outright blocking projects from moving forward. Instead, judges tend to order revisions to environmental documents as building continues. State and federal environmental agencies have already approved the project.

The bigger threat to WaterFix is likely to be political. With Brown retiring at the end of 2018, the project loses its major champion. None of the leading candidates for governor this year support building both tunnels.

Emily Cadei: 202-383-6153, @emilycadei

Ryan Sabalow: 916-321-1264, @ryansabalow

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