Ag Today August 22, 2017

Dozens are suing to block Delta tunnels. Will it matter?

By Dale Kasler Sacramento Bee

They have one of the most powerful legal weapons found in any courtroom – the California Environmental Quality Act, or CEQA.

But environmental groups, local governments and others face an uphill climb in their fight against the controversial Delta tunnels project. History suggests that suing under the California environmental law likely won’t be enough to kill the tunnels.

At least 58 groups opposing the tunnels had sued the state as the legal deadline approached Monday afternoon. The plaintiffs include an alliance of crab boat owners, an American Indian tribe dependent on salmon fishing, several Sacramento Valley water agencies, the cities of Folsom and Roseville, and San Joaquin, Solano and Yolo counties. Sacramento County filed one of the first suits last week, arguing that the $17 billion tunnels project would take valuable Delta land out of production and create other problems in the south county. All of the cases say the tunnels project represents a violation of the state’s strict environmental law.

Yet experts on CEQA said project opponents shouldn’t count on their lawsuits forcing Gov. Jerry Brown’s administration to scrap the tunnels. More typically, the courts will require developers to redo some of their environmental impact reviews – a process that could lead to delays and even some modifications, but not outright cancellation of the project.

“CEQA isn’t designed to halt projects,” said Tina Thomas, a prominent Sacramento land-use attorney.

Some groups have been able to use CEQA litigation to drag projects out to the point that developers give up. Steve Herum, a lawyer in Stockton, represented a citizens group in Clovis years ago that sued over a proposed Walmart in the Fresno suburb. The case languished in the courts for years, and eventually the developer walked away, Herum said.

“We opposed it for 11 years and it still hasn’t been built,” he said.

There are also numerous examples of CEQA lawsuits barely making a ripple in how a development moved to fruition. Opponents of Golden 1 Center failed to make a dent in the development of the year-old Sacramento Kings arena in downtown Sacramento. Other big projects that have proceeded without interruption despite CEQA lawsuits include Sacramento’s McKinley Village infill housing community and the long-range redevelopment of the downtown railyard.

The city of Sacramento added its name to the list of plaintiffs challenging the tunnels shortly before the deadline, although Mayor Darrell Steinberg said the city isn’t necessarily trying to thwart the project. Rather, he called the lawsuit a “narrowly drafted” case aimed at giving the city a voice in determining how the tunnels are operated and how they would affect the city’s water supplies.

Even if CEQA litigation can’t halt the tunnels, the project isn’t exactly home free. The south-of-Delta water agencies that will have to pay for the project are expected to vote next month on whether to commit. At least one major agency – Westlands Water District, which serves farmers in Fresno and Kings counties – has indicated the project might be too expensive.

Regardless of how the water agencies vote, tunnels opponents said they think they can use CEQA to bottle up the plan in court.

“This is a different type of situation,” said Bob Wright, counsel at Friends of the River, one of five environmental groups that sued the state Monday in Sacramento Superior Court.

In particular, Wright said state officials botched the required environmental reviews by failing to consider an obvious alternative to building the tunnels – namely, a comprehensive conservation program that would force south state water agencies to pull less water out of the Delta. If the state were forced by a judge to consider such a plan, it would create a groundswell of public support for conservation, Wright said.

“The (tunnels) project will likely not proceed, as a simple matter of common sense,” he said. Environmentalists believe the tunnels would bring more environmental harm to the Delta’s fragile ecosystem.

As envisioned by state officials, the tunnels would reroute the flow of water from the Sacramento River through the Sacramento-San Joaquin Delta and into the massive pumping stations at the south end of the estuary.

The pumps are so powerful that they can cause portions of the San Joaquin River to flow backward, putting endangered fish species in harm’s way. Pumping sometimes has to be halted or severely curtailed to save the fish, allowing water to flow out to the ocean and bypass the pumps.

Brown’s aides say the tunnels would fix that. The twin underground tunnels would start at Courtland, outside of Sacramento, and carry a portion of the Sacramento River’s flow 40 miles south to the pumping stations. State officials say this arrangement would reduce the “reverse flow” phenomenon, keep more fish alive, and enable the pumps to deliver water more reliably to the agencies in Southern California, the San Joaquin Valley and parts of the Bay Area.