Lawsuits, get yer lawsuits here

8/24: Updated with Placer County Water Agency, Anderson-Cottonwood Irrigation District, city of Brentwood, North Delta Water Agency, Sacramento Municipal Utility District

8/23: Updated with complaints from Butte County and cities of Folsom, Roseville

I’ll try to post all of the newly filed Delta tunnels lawsuits here. If I’m missing anything, please drop me a line — I’d like to hear about it. Thanks.

Anderson-Cottonwood Irrigation District

City of Antioch

City of Brentwood

• Butte County

• Delta counties, Delta farmers, etc.

East Bay Municipal Utility District

Cities of Folsom and Roseville, San Juan Water District and Suburban Sacramento Water District

Glenn-Colusa Irrigation District and other Sacramento Valley water districts

• North Coast Rivers Alliance, commercial fishing groups, Winnemem Wintu tribe

Placer County Water Agency

North Delta Water Agency

• Restore the Delta, Friends of Stone Lakes National Wildlife Refuge, Save Our Sandhill Cranes, various environmental groups

City of Sacramento

Sacramento County

Sacramento Municipal Utility District

Sacramento Regional County Sanitation District

• Save the California Delta Alliance

• City of Stockton

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A more nuanced message on Delta tunnels

Delta tunnels proponents really want you to read the latest blog post by fish experts Peter Moyle and James Hobbs. The project’s official Twitter account, @CAWaterFix, has tweeted links to the post six times over the past day.

“Dr. Moyle & Dr. Hobbs explain why they are optimistic about #CAWaterFix from a fish perspective,” one tweet reads.

The scientists do share some reasons for optimism, explaining their “qualified support” for the project. But they use just as much digital ink, maybe more, describing the potential pitfalls of this “giant experiment that may or may not work as promised, no matter what the models and experts say.”

The new fish screens on the Sacramento River will be “pushing screening technology to the limit,” Moyle and Hobbs write. If something unexpected happens, it is unclear exactly how the adaptive management process will function and how decisions will be made. And the scientists acknowledge that it may be hard for skeptics to accept official promises that the project will not result in a substantial increase in water exports from the Delta.

The trust concern ties back to issues like the temporary urgency change petitions that Gov. Jerry Brown used to weaken Delta water quality standards and save more water during the drought, without going through the standard environmental review process. For tunnels opponents, that begs the question: What will some future governor do when the first drought strikes a tunneled Delta? What will happen to the rules that are supposed to govern tunnels operations? Will Lucy pull away the football?

Same thing with Congress, which seems to be perpetually considering legislation that would ramp up Delta exports. Who will be in power in 2035, after the tunnels become operational? 2040? 2050? What will the political climate be then? Will someone try to override Delta protections? Of course, there’s no way to tell.

Reducing exports may actually be the best chance for endangered fish, the scientists conclude in their post, but the “realities of California water politics” make such an outcome unlikely. Of the remaining alternatives, they say, the tunnels are best.

All of this is simply to suggest that we read the full post. Don’t just really on summaries (including this one) or whatever supporters or opponents are saying on social media. Moyle and Hobbs deliver a nuanced message.

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Good gravy! It’s in the 80s

Notice anything different today? Stockton’s longest streak of 90-degree-plus weather in half a century has finally ended.

National Weather Service

July 1 was the last time we fell short of 90 degrees. Since then it’s been 93 degrees or worse. Such a 43-day barrage of above-average heat is unusual, even for the Central Valley in July and August.

Which is why today’s 86 degrees never felt better.

Of course, it’s too much to ask for an extended period of below-average temperatures. The city is likely to be back in the 90s by midweek.

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Litigation trepidation. I have it.

With Lawsuit-Palooza Episode II expected in theaters on or before Aug. 21, I can’t help but wonder how impossible it’ll be to keep tabs on all of this.

We’re talking Delta tunnels litigation now, and as former San Joaquin County Supervisor Larry Ruhstaller used to say, this will be like playing three-dimensional Tic-Tac-Toe in the dark with catcher’s mitts on. (I think that’s what he used to say. Sorry if I got that wrong, Larry.)

More succinctly, this is gonna be a mess.

First, the state’s decision to move forward with the tunnels last month started a 30-day clock that expires on Aug. 21, by my count. That’ll be the deadline for tunnels opponents to file lawsuits challenging the project under the state’s California Environmental Quality Act. Everyone and his dog who lives north of Tracy will file.

But wait. It couldn’t be that simple, right? Because the tunnels will convey water that belongs to both the state and federal water projects, the feds are partners in all of this. They’re expected at some point to announce their own decision to proceed. And that means a whole ‘nother set of very similar lawsuits filed in federal court.

What happens if state courts rule one way and federal courts the other? Don’t ask me.

We’re not finished. These are the lawsuits targeting the environmental documents that justify the project. We’ll have an entirely new round of litigation when (and if) the State Water Resources Control Board decides to modify the projects’ water rights, allowing their water to be diverted from a new location. We’ll have a new round of litigation when (and if) the U.S. Army Corps of Engineers grants a permit to modify wetlands. And we’ll have a new round of litigation when (and if) the Delta Stewardship Council finds that the tunnels are consistent with the Delta Plan (which, by the way, is itself still being litigated).

Oh, and there are the lawsuits challenging the federal wildlife agencies’ biological opinions which have already been filed.

And there may well be other points of entry for tunnels opponents that I”m not aware of.

Good luck to anyone trying to sort this out in the coming weeks, months and years.

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Fact check on Devin Nunes

On the floor of the House of Representatives last week, south valley Rep. Devin Nunes was calling attention to all of the “wasted” water that flowed out to the ocean this year when he made an interesting comment:

“Some on the other side of the aisle, they continually talk about global warming, and they continually talk about how the oceans are rising,” said Nunes, a Republican. “If you believe the oceans are rising, why would you want more water to flow out to the ocean? I don’t understand that.”

Photo by Scott Applewhite, Associated Press

The implication was that the Sacramento and San Joaquin rivers, and their tributaries, were running so strong and so full this year that they might have worsened the danger posed by global sea level rise.

That’s not the case. Nunes said 46 million acre-feet of water flowed beneath the Golden Gate into the ocean, which has a total worldwide volume of… wait for it… 1 quadrillion acre feet, or about 321,000,000 square miles.

Runoff from interior California has a negligible impact on such a vast pool of water.

“It’s like spitting into Lake Tahoe,” said Bill Patzert, an oceanographer with NASA’s Jet Propulsion Laboratory in Pasadena.

But wait: If you are rather generous in interpreting his comment, Nunes isn’t entirely off base.

Let’s back up and allow Patzert to explain.

For millions of years, the Earth’s waters have been in hydrologic balance. Water from the ocean evaporates, generating precipitation that falls over land and feeds our rivers, which then dump into the ocean and replenishes the water that evaporated in the first place. Not that complicated.

If you were to disrupt that cycle by damming all of the rivers in the world, with nary a drop trickling into the ocean, sea levels would indeed decline.

Conversely, if all of the rivers in the world were allowed to run unfettered to the sea, global sea levels would rise about 10 centimeters or 4 inches, Patzert said.

“He (Nunes) isn’t totally wrong,” Patzert said.

That said, rivers’ contribution to sea level rise is small in the grand scheme of things. One-third of sea level rise is blamed on heat which is absorbed by the oceans and causes them to expand, Patzert said. The other two-thirds can be blamed on the melting of the great ice sheets. Both causes are tied to carbon dioxide emissions by humans.

“The flow on the Sacramento River is so far down the noise level compared to those two things,” Patzert said.

Watch a short clip of Nunes’ comments here.

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More on the Delta tunnels JPA

The Metropolitan Water District of Southern California today released the first of three “white papers” on the Delta tunnels, which are supposed to inform MWD board members as the district moves toward a September vote on the project.

Most of what’s in there has been reported previously. But here are a few things I found interesting:

• The JPA. It has already been reported that the state Department of Water Resources and the water contractors were considering forming a joint powers authority to oversee construction. The white paper adds a new justification — the emergency construction work at the Oroville Dam spillway — and a few more details.

“Recognizing DWR staff resources are stretched to an extreme level due to the necessary commitment to complete significant repairs to the Oroville Reservoir spillways as a result of damage during heavy runoff in 2017, there is a need to employ different but proven approaches to pool resources for the design and construction of California WaterFix,” the document says.

In other words: The state has too much on its plate to handle the tunnels, too.

This approach will be controversial, of course. A JPA would effectively give the water contractors who stand to benefit from the tunnels more say in how they will be built. (Then again, they are paying for them.)

Conceptually, the white paper says DWR would retain some level of oversight while the JPA, complete with an executive director and a board of directors, handles the nitty gritty details. A staff would be hired, complete with engineers, accountants, auditors, public relations folks and attorneys, among others.

If something goes kaput, it appears that some changes to the project would have to be approved by DWR while others wouldn’t. Anything more than a 5 percent increase in budget for a major component, for example, would require state approval. Less than 5 percent apparently wouldn’t.

The JPA would have to provide monthly and yearly reports on its progress.

What’s also important in these kinds of deals is the dispute resolution process. What if the water contractors and the state disagree on the best path forward? The white paper lays out a process for an expert panel to help make those decisions. Ultimately, major disputes would come down to the DWR director and the JPA executive director sitting down in a room somewhere and working it out.

The tunnels would be turned over to DWR once they’re finished, and the JPA would cease to exist.

• The cost. Metropolitan’s white paper puts the cost of the project at $15.7 billion. That’s lower than the $17.1 billion that reporters were given by DWR as recently as last week. I’ll ask about this later.

The white paper notes that Metropolitan has a “75 percent confidence level that the project would be completed within the budget estimate.”

The third and final white paper, expected later this summer, will address who pays how much, which may be the thorniest issue of them all.

• The timeline. Metropolitan assumes that construction won’t begin until three years after the project is authorized, which could happen in the coming months. That would mean construction wouldn’t begin until 2020. It would then take about 13 years to build everything. Bottom line, we’d be into the 2030s before it’s over.

• The pumps. This is deep in the weeds. But apparently, when the Sacramento River is flush with water, there are times when the new pumps at the far (south) end of the tunnels can be turned off. I’m not talking about the existing south Delta pumps. I’m talking about the pumps that will be used to pull up water from the tunnels and dump it into Clifton Court Forebay.

So at times, the entire system would be gravity fed — not just the tunnels. Didn’t know that.

• Peat problems? Not according to Metropolitan. The tunnels will be built deep enough to avoid peat soil, which is prone to liquefaction and settlement. Instead the tunnels will be buried in dense deposits of silts, sands and clay layers, the white paper says.

The tunnels will also be deep enough to absorb or dampen vibrations, MWD says. “Induced vibration to structures should be minimal and would not likely be perceptible to the communities on the surface,” the white paper says.

• Why twin tunnels? Why not a single tunnel? Well, a single tunnel would have to be nearly 60 feet in diameter to convey the same amount of water, the white paper says. This would make it among the largest tunnels ever drilled. The proposed 40-foot twin tunnels are plenty big enough, of course, but 40 feet isn’t considered as risky and is more in line with some other major tunnels projects around the world.

• How far along is design? Just 5 to 10 percent. Which perhaps explains why it would take another three years after approval to start building.

• More tests coming. Some Delta property owners fought the state’s efforts to drill for soil samples and conduct other environmental surveys in preparation for tunnels construction. The farmers ultimately lost at the state Supreme Court, but were successful in delaying at least some of the tests.

Today, while 240 drill tests have already been conducted, there are gaps of several miles along the alignment, more work is needed, the white paper says.

“Up to 2,000 additional investigations would be conducted, consisting of borings, cone penetrometer and other physical data collection methods,” the paper says.

Overall, the Met concludes that the tunnels are a “potentially successful project.” The white paper will be discussed at a Metropolitan committee meeting on Monday.

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Are we hypocrites?

Photo by Calixtro Romias

San Joaquin County residents want a cleaner and greener transportation system, one which leads to fewer greenhouse gas emissions and less sprawl, a new survey finds.

Eighty-one percent of us think reducing GHG emissions is either “important” or “very important.” That number is 64 percent when it comes to preserving farmland. We also strongly support expanding public transit along with bike lanes and pedestrian paths.

In short, we want to change our gas-guzzling, growth-inducing ways.


Wait a sec. In the same survey, 78 percent of us say it’s important or very important to “build new roadways to improve access or support new development.”

So we want all the new green stuff. But we also want more of the status quo.

Apparently we just want it all.

This reminds me of a smaller survey a few years ago, also done by the San Joaquin Council of Governments, in which respondents made it clear they favored development only within existing cities — no sprawl. Yet two-thirds of the same group professed a desire to live in single-family homes or even rural ranchettes (44 percent alone preferred ranchettes, which are pretty much the opposite of infill).

Are we shameless hypocrites? Do we respond to questions with the answers we think we should give, or the answers that we think the questioners want to hear, but when push comes to shove and it’s our own lives we’re talking about we don’t want to change?

I chatted with COG’s executive director, Andrew Chesley, about the latest findings on Friday. He seemed to give folks the benefit of the doubt.

“People know what they’re talking about,” he told me. “They know there is a connection between transportation and land use. They know we can do it better. They also recognize their own behavior is tough to change.”

They also recognize their own behavior is tough to change. We can talk about this stuff forever, and we can acknowledge the consequences of sprawl, but if people’s personal behavior and actions don’t change then can’t we expect more of the same?


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Not exactly ‘whitewater’ rapids

Clark Fork, a major tributary of the Stanislaus River, was not only running high at the peak of last week’s heat wave, but also quite turbid and muddy. It was 90 degrees at 6,000 feet; evidently there was so much flow that the river and its tributaries, including aptly named Disaster Creek, were eroding their banks.

Quite a sight up there.

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More confusion than clarity in tunnels EIR

Gov. Jerry Brown spends quality time with the massive Delta tunnels EIR. Photo courtesy the governor's office

The final version of Gov. Jerry Brown’s twin tunnels plan is better than earlier drafts but still contains “key flaws,” independent scientists say, including an environmental impact report that is so chock full of facts that it doesn’t tell a clear story.

The latest draft critique marks the Independent Science Board’s fifth review of various iterations of the tunnels plan. Their criticism isn’t really about the tunnels themselves, but rather the documents that are being used to justify their construction.

The final EIR is like the drafts before it, “failing to communicate clearly the principal findings and uncertainties of an enormous report,” the panel concludes.

This isn’t all on the architects of the plan, the scientists add. EIRs are supposed to be understandable to the general public, but courts have often thrown them out because they’re not comprehensive enough. The result? EIRs that, for big projects like the tunnels, can total tens of thousands of pages filled with jargon and veritable acres of gray text.

In short, most EIRs now favor comprehensiveness over clarity and readability. And the the tunnels plan is no different.

The problem is that the lack of clarity puts many regular people (including yours truly) at a disadvantage. This includes members of the general public who may be most affected by a project — in this case, Delta residents themselves.

Those who wrote the tunnels EIR “followed what the laws, regulations and permitting processes require,” the science board says. “They faced enormous challenges from such a large and complex system. Yet the Delta’s problems are so important that project proponents should go far beyond the norm when providing and synthesizing scientific information.

“Environmental impact assessments for (the tunnels) have missed opportunities to increase understanding of the Delta as an ecosystem, a water supply, and as a place where people live and work.”

Some of the other issues raised by scientists in their latest review:

• The EIR doesn’t contain enough details about how so-called “adaptive management” would actually work. This criticism should sound familiar to those who have followed the tunnels issue over the last few years. Adaptive management is a way to deal with uncertainty about the future of the Delta that could lead to unexpected changes in how the tunnels must be operated.

The report explains why adaptive management is important, but not the details of how it will actually be done, the scientists say. That plan should be put in place now, they say, not after a decision has been made and officials have already pushed forward with the project.

• The report doesn’t “systematically” address how the tunnels might affect Delta levees and relies on seismic risk studies more than a decade old (a concern, since seismic risk is one of the justifications for building the tunnels in the first place).

• The report also doesn’t go deep enough on the potential impacts of climate change on the project, nor reductions in groundwater availability in the overtapped San Joaquin Valley, which could increase demand for Delta water.

Officials may not want to speculate about things like that, the scientists say, but “reasoned speculation… is an important part of science and public policy discussions.”

• The report doesn’t look closely enough at potential environmental impacts of providing more water to those agricultural areas, such as pesticide use and agricultural runoff.

• The report is “overly optimistic” about how quickly wetland restoration projects will offset environmental impacts of building and operating the tunnels.

• Finally, of particular interest to Delta residents, the impacts of construction are “substantively” addressed but are not presented in a coherent way, with the details scattered across many chapters and not summarized in a way that might help Delta people understand what to expect.

A final version of the critique is expected to be released this week. I’ll post it here along with any major changes to the draft.

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Back on the porcupine beat

A woman called this morning. “This may sound strange,” she said, “but are you the person who wrote an article about porcupines?”

I immediately knew what was up. Every once in a while someone calls me to report a porcupine sighting. See, I wrote a story in 2012 about how porcupines are increasingly rare in the Sierra Nevada. So when people see a porcupine, and they hop on Google to find out how unusual that is, they find my old article and give me a call.

The weirdest such call came a couple of months ago. I wasn’t here so the guy left a voicemail. “I found a porcupine in Winnemucca, Nevada,” he said. Click.

Photo from the National Park Service

Today’s caller, 33-year-old Harper Dial of South Lake Tahoe, was a bit more talkative. But get this: Harper hasn’t seen just one porcupine. No, she’s seen seven of them, over a period of less than three years.

“A bunch of people have told me that they don’t believe me,” she said. “Then they’ve seen one with me. It’s very weird. I think they’re like my spirit animal. I know that sounds really dumb.”

One of the porcupines Harper hit with her car. She took him to a wildlife refuge, and eventually the animal recovered and was released back into the forest.

“I was happy when I went back and it was alive,” she said. “I felt a lot better about the whole thing.”

I’ve spent a fair amount of time in the Sierra and I’ve never seen a porcupine. Though I’ve never lived there, either. Certainly someone who lives at Tahoe would be more likely over the long haul to have that experience.

Porcupines aren’t endangered. Why have they become more difficult to find? One theory is that porcupines, which have a slow reproductive rate, have never fully recovered from aerial poisonings administered by the government in an effort to protect timber half a century ago.

Whatever the cause of the apparent decline, I’m glad Harper called. If one person saw seven porcupines, then there have to be a heck of a lot of them out there, right?

Any bets on how long before I get another call?

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