Reflections on an Aberrant, Convoluted State Water Board Hearing on Expedited Water Transfers

CSPA, C-WIN, Defenders of Wildlife, South and Central Delta Water Agencies and the County of San Joaquin fight tenatious battle in face of fundamental violations of ethical behavior

by Bill Jennings, Executive Director, CSPA

May 3, 2009 -- On April 27 and 28, the State Water Resources Control Board held an evidentiary hearing on the petition by the U.S. Bureau of Reclamation (Bureau) and California Department of Water Resources (DWR) to consolidate their respective places-of-use in their water rights permits in order to expedite water transfers over the next two years.  The State Board will now consider the testimony and evidence in a closed session on 5 May and then issue a draft opinion for adoption at a subsequent public board meeting.

Several bizarre twists occurred in the course of the hearing.  Westlands, San Luis-Delta Mendota Water Authority and San Clara Valley Water District inexplicably withdrew their case-in-chief, leaving a huge gap in the record for the proponents.  DWR then resorted to an underhanded and ethically reprehensible tactic to introduce new evidence into the record after the hearing record had closed.  The frantic effort by DWR to augment a poor hearing record, after the fact, sets the stage for a denial-of-due-process action against the State Board should they not properly remedy it. 

DWR and the Bureau's effort to consolidate their respective places-of-use would represent a dangerous precedent if approved.  Beyond impacts to fisheries, the environment and other legal users of water, it would be the first time Central Valley Project water could be shipped to urban southern California and the first time State Water Project water could be used to irrigate the selenium-impaired lands on the Westside of the San Joaquin Valley.

The California Sportfishing Protection Alliance (CSPA) and California Water Impact Network (C-WIN) filed protests and submitted extensive testimony and exhibits opposing the petition.  Defenders of Wildlife, South and Central Delta Water Agencies and the County of San Joaquin filed protested and participated through cross-examination and opening and closing statements.  Westlands Water District, San Luis-Delta Mendota Water Authority and Santa Clara Valley Water District joined DWR and the Bureau in supporting the petition.  The Department of Fish and Game, U.S. Fish and Wildlife Service and the National Marine Fisheries Service jumped in their foxholes, spurned subpoenas and continued their abominable stance of avoiding situations where they might be compelled to testify, under oath, on impacts to fisheries.  Consequently, there were no biologists in the proceeding.

CSPA and C-WIN pointed out the unacceptable absence of any environmental review for the petition and the difficulty of evaluating potential impacts because of the lack of a project description: i.e., the number, source, volume and timing of water transfers.  Among other things, we also:
o     Chronicled, at considerable length, the seriously degraded state of Central Valley fisheries and water quality and the numerous impacts that would likely result from approval of the petition.
o     Described the history and inevitability of drought in California and the state's failure to develop an effective drought management plan and noted that impacts had been exacerbated by the project's delivery of near-average allocations of water during the first and most critically dry-year of the drought sequence (in fact, southern California had received 105% of average).
o     Documented snow-water-equivalent, precipitation-to-date and reservoir storage levels that are below average but not critically dry and disputed the need for a two-year change when next      year's hydraulic conditions could not be predicted.
o     Testified that drought cannot be considered an “unforeseen emergency” and mocked the absurdity of discarding fundamental environmental statutes in situations that arise one-fourth to one-third of the time.
o     Observed that the state's hierarchical, seniority water allocation system was functioning as intended and that impacts primarily fell on those who receive water pursuant to junior water rights that have always been subject to 100% interruption in the event of drought. 
o     Discussed the economic impacts of the drought cycle and explained that impacts had been aggravated because recipients of water predicated on interruptible supplies had planted vast acreage of perennial crops requiring a permanent source of water.
o     Predicted that approval of the petition would only encourage more planting of permanent crops in the south Valley that would increase the impacts of future droughts and discourage the state from developing a comprehensive drought management plan.
o     Portrayed the scheme as pitting one part of the state against others: i.e., benefiting the Westside of the San Joaquin Valley while redirecting impacts to the Eastside, Delta and Sacramento Valley. 
In sum, we characterized the petition as a transparent attempt to transform supplemental and intermittent water supplies into firm yields by ignoring the suite of environmental laws enacted to protect water quality, fisheries and the public.

Frankly, DWR and the Bureau presented a surprisingly weak case-in-chief, apparently relying upon the belief that the State Board could simply not deny a petition that was strongly supported by the Governor.  Their three witnesses (none a biologist) were hammered in cross-examination.  Westlands, Delta-Mendota and Santa Clara inexplicably withdrew their case-in-chief, even though they had previously submitted witnesses and testimony; leading one to speculate that they wanted to avoid subjecting their witnesses to what would have been brutal cross-examination.  This puzzling decision virtually eliminated all testimony documenting water needs and economic impacts from the hearing record.  And, it set the stage for DWR's desperate and ethically indefensible attempt to augment the record.

The Hearing Officer puzzlingly reversed the order of the hearing for closing arguments.  In other words, instead of going first, DWR gave its closing arguments after all of the other parties had presented theirs.  Toward the end of DWR's presentation, they dropped a bombshell.  They casually mentioned that the previous afternoon, after most of the evidentiary testimony had been given, crossed and rebutted and after it was apparent that the petition was in trouble, the Department had filed a notice of exception for complying with the California Environmental Quality Act (CEQA) with the State Clearing House.  They further stated that the information would be filed with the State Water Board that afternoon, along with the signatures of the Secretaries of CalEPA and the Resources Agency affirming that the exception was in accordance with the Governor's Emergency Drought Proclamation.  Later that afternoon, after the hearing had ended, the submittal was distributed to the various parties.  It became apparent that DWR was also attempting to cram the record with claims regarding economic impacts and hardship that they had failed to disclose during the hearing, where they would have been subject to cross-examination and rebuttal.

DWR's egregious, circuitous attempt to rig a formal evidentiary hearing, possibly with the connivance of State Board Members, was an unjustified, inexcusable and fundamental violation of ethical behavior and due process rights.  Had this information been provided during the course of the hearing, CSPA and C-WIN would have directly addressed it.  Indeed, CSPA had prepared extensive rebuttal testimony and exhibits regarding economic impacts, the significant increase in farm labor employment in the San Joaquin Valley over the last three years and the 135,000 new acres of almonds planted south-of-Delta in the last four years.  Unfortunately, we were unable to present this rebuttal evidence after Westlands vacated their case-in-chief because there was no evidentiary evidence on drought impacts to refute.

The lessons from this charade are clear.  Where you have a Governor that can wipe out CEQA and requirements that state agencies comply with water quality control plans - including the Bay-Delta Plan - with the stroke of a pen and where a Governor's agencies and boards can casually violate due process rights; there can be no promises or assurances related to operation of the state and federal water projects or construction of a peripheral canal that anyone can depend upon.

As previously noted, the State Water Board will consider the hearing evidence in closed session on 5 May and prepare a draft order on the petition for adoption at a subsequent board meeting.  CSPA and C-WIN are prepared to appropriately respond.