Flawed Delta Tunnels Project Takes Big Financial and Legal Hit

The controversial Delta Conveyance Project, which would install a massive tunnel to move water under the Sacramento-San Joaquin River Delta, took a major financial and legal hit this week, after a Sacramento County judge ruled California can’t issue bonds to fund the project, Courthouse News reported.

In 2019, shortly after taking office, California Gov. Gavin Newsom announced that he did not support former Gov. Jerry Brown’s $19 billion plan to build two massive tunnels under the San Joaquin River Delta. He said he was a one-tunnel guy. “In his first State of the State speech, Democratic California Gov. Gavin Newsom announced that he will significantly refashion former Gov. Jerry Brown’s pet projects, including the mismanaged High Speed Rail project, and the Delta Tunnels project will be downsized to one tunnel,” the Globe reported.

Gov. Newsom continues to opt for the Delta Tunnel(s), despite that California voters passed more than $30 billion in water bonds to build additional water storage and two new reservoirs, which would accomplish more water delivery to Southern California without destroying the Delta, its inhabitants, and its prime farmland. Only recently has Newsom acknowledged the need for the Sites Reservoir.

In July 2022, Newsom resurrected the massive tunnel project – with only one tunnel, which many say will still destroy the Delta.

In Sierra Club et al., v. California Department of Water Resources, Sacramento County Superior Court Judge Kenneth C. Mennemeier issued a narrow ruling Tuesday about the bonds for the Delta project, finding that the California Department of Water Resources’ definition of the “delta program” isn’t linked to the Feather River Project.

“A bureaucratic connection between the two is essential for the bonds, the judge ruled in the case Sierra Club v. California Department of Water Resources.”

The Department of Water Resources attempted to tie the bond resolutions to a purported “Delta Program.” The Judge disagreed, stating:

In plain words, the problem with DWR’s definition of the “Delta Program” is that its
definition is untethered to the objectives, purposes, and effects of the Feather River Project unit
of the CVPA.

2) Whether DWR Has the Authority to Issue the Series A and Series B
Bonds to Finance the Costs of Planning, Acquiring, and Constructing
Conveyance Facilities as Defined in and Pursuant to the Terms of the
Bond Resolutions (Court emphasis)

For these reasons, the Court finds 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 light of its ruling, the Court need not reach the additional arguments raised by the parties in the Validation Action.

Courthouse News explains further:

The Department of Water Resources has the authority to issue bonds to finance projects under the Central Valley Project Act. The Feather River Project falls under that act. However, for the department to issue bonds for the delta project, it must be a modification of the Feather River Project.

Mennemeier ruled it isn’t an modification, meaning the department can’t issue bonds to finance the delta project.

“For (the department) to act, it must have delegated authority,” Mennemeier writes. “Although the Legislature plainly delegated broad authority to (the department), it did not delegate infinite authority.”

He added “In plain words, the problem with (the department’s) definition of the ‘delta program’ is that its definition is untethered to the objectives, purposes, and effects of the Feather River Project.”

Here is the court ruling in Sierra Club v. California Department of Water Resources.

Maven’s Notebook also has all of the details.

Gov. Jerry Brown tried repeatedly over the decades to create a Delta “conveyance.” Yet voters rejected Gov. Brown’s 1982 plan to build the “peripheral canal” through the Delta during his first turn as governor. That was to be an above ground waterway that would convey water from north to southern California. Voters killed the plan in 1982, dealing Brown and his family’s legacy a major blow. But that didn’t stop the backers.

The Globe has the back story here.