CA Department of Water Resources Files Delta Tunnel 'Validation Action' with Court
On January 16 of last year, the Sacramento Superior Court ruled that DWR lacks the authority to issue revenue bonds to finance the embattled Delta Conveyance Project
On January 7, the California Department of Water Resources (DWR) filed a “validation action” with the Sacramento County Superior Court regarding DWR’s authority to issue revenue bonds to finance the planning, design, construction and other capital costs of Delta conveyance facilities, such as the Delta Conveyance Project DWR approved in December 2023.
On January 16 of last year, the Sacramento Superior Court ruled that DWR lacks the authority to issue revenue bonds to finance the embattled Delta Conveyance Project, commonly referred to as the Delta Tunnel. DWR has appealed that decision: sacramento.newsreview.com/...
The Delta Tunnel is a project opposed by several California Indian tribes, nearly all environmental groups in the state and beyond, Southern California ratepayers, recreational anglers, commercial fishermen, conservationists, Delta businesses and Southern California water ratepayers.
Opponents say the tunnel, which would divert Sacramento River at Hood and Courtland before it flows through the Delta, would hasten the extinction of Sacramento River winter and spring-run Chinook salmon, Delta Smelt, longfin smelt, Central steelhead, green sturgeon and other fish species, as well as impact the cultural resources of Tribes and devastate Delta communities in the path of the proposed tunnel.
“Although DWR has existing legal authority to finance and construct the proposed project under the Central Valley Project Act, a validation action is necessary to provide the requisite assurance to the financial community for the sale of revenue bonds,” DWR claimed in a statement. “DWR is pursuing this path in parallel with its appeal of the decision issued in its previous validation action to explore all possible paths to resolve the validation question with expediency.”
DWR also claimed it “derives its authority to issue bonds to finance planning and construction of the State Water Project (SWP)” under the State Water Resources Development Bond Act of 1959 (Burns Porter Act), California Water Code section 12930, and the Central Valley Project Act, California Water Code section 11100.
Bob Wright, attorney for the case DWR is appealing, slammed the latest litigation by the Department as “duplicative” and “frivolous.”
"The Department of Water Resources is engaging in duplicative, frivolous litigation by filing a new case repeating the case they lost last year and are presently trying to get reversed in the Court of Appeal,” said Wright. “They are trying to do to the taxpayers by frivolous lawsuits what they are trying to do to the health of Delta residents and users and the endangered and threatened fish species. I won't use the word describing what they are doing in a family news article."
Kenneth C. Mennemeier Jr., a judge for the Sacramento County Superior Court, denied DWR’s previous request for an order “validating” bond resolutions that would have financed the project.
Sacramento, San Joaquin, Contra Costa, Solano, Yolo, Butte and Plumas counties and their related water agencies – with other litigants – had been challenging DWR’s legal right to issue an unlimited amount of bonds to finance the highly controversial tunnel.
The Court agreed with the counties, ruling that “DWR exceeded its delegated authority when it adopted the Bond Resolutions, which purported to authorize the issuance of the Delta Program Revenue Bonds.”
In reaching this conclusion, the Court rejected DWR’s claim to almost unlimited authority in such matters, ruling that the Water Code “does not give DWR carte blanche to do as it wishes.”
“For DWR to act,” Mennemeier noted, “it must have delegated authority. Although the Legislature plainly delegated authority to DWR, it did not delegate infinite authority.”
DWR had attempted to tie the bond resolutions to a purported “Delta Program.” The Court rejected this gambit.
“In plain words, the problem with DWR’s definition of the ‘Delta Program’ is that [it] is untethered to the objectives, purposes, and effects of the Feather River Project of the CVPA,” Mennemeier wrote. “Since DWR lacks the authority to adopt the Delta Program,” as DWR had defined it, “it necessarily follows that DWR lacks the authority to issue revenue bonds to finance the Delta Project.”
Attorneys Thomas Keeling and Roger Moore successfully represented most of the counties in the action. Moore described the Court’s judgment as “plainly correct” and “yet another nail in the coffin of this grotesquely misconceived and outlandishly expensive taxpayer boondoggle.”
“This is a victory for the counties and agencies, for the taxpayers, for the environment, for Delta farmers and businesses, and for common sense,” Keeling and Moore added in a joint statement at the time.
Bob Wright, counsel for Sierra Club California and a board member for Restore the Delta, explained the significance of last January’s court decision at the time.
“This is good news for Delta residents and users protecting the impaired and fragile Delta from the destruction that would be caused by diverting significant freshwater flows away from the Delta into a tunnel for export,” Wright argued in a statement. “It is also good news for ratepayers and taxpayers who would be hit with the many billions of dollars this expensive boondoggle would cost.”
Opponents have noted that Governor Gavin Newsom is pushing the unpopular water-grab at a time when the San Francisco Bay-Delta Estuary is in its worst ecological crisis in history, largely due to water exports and the oversubscription of water in California.
As I receive more information and responses to DWR’s filing of the “validation action” today, I will post them here.
In other Delta Tunnel news, the Valley Water District — formerly the Santa Clara County Water District — will decide whether to continue funding an additional $9.69 million for planning and design work for the controversial Delta Conveyance Project (DCP) in San Jose on Jan. 14, 2025.
People are urged to speak against the additional funding for the Delta Tunnel either in person at Valley Water Headquarters Building Boardroom, 5750 Almaden Expressway, San Jose, CA 95118, at 1 p.m. or remotely via Zoom: https://valleywater.zoom.us/j/84454515597.
The vote follows the vote by the Metropolitan Water District’s Board of Directors on Dec. 11 to fund an additional $141.6 million for planning and design work for the Delta Tunnel. Valley Water District is one of 18 agencies participating in the proposed Delta Conveyance Project.
