The California WaterFix hearing officers for the State Water Resources Control Board yesterday denied the motions by Delta Tunnels opponents to delay the hearing on the permits to build the project, based on alleged illegal exparte communications between Water Board and Department of Water Resources staff.
The officers, Board Chair Felicia Marcus and Member Tam M. Doduc, found that the exparte communications did not violate the law. They also found that no changes to the WaterFix project have been proposed that would warrant re-opening Part 1 or staying Part 2 of the hearing process at this time.
“The communications between State Water Board staff and DWR staff that are the subject of the motions either concerned non-controversial, procedural issues or were properly limited in scope to California Environmental Quality Act (CEQA) consultation between lead agency and responsible agency to ensure analysis of an adequate range of alternatives,” they wrote.
‘We find that those communications did not violate the law prohibiting ex parte contacts, nor are the communications evidence of an unacceptable risk of bias that would warrant disqualification of hearing team members or the decision-makers in this proceeding,” they concluded.
They said the hearing will resume at 9:30 a.m. on February 8, 2018 in the Coastal Room at the CalEPA building.
The Bureau of Reclamation and the California Department of Water Resources have applied for a permit to change the point of diversions for the State Water Project and Central Valley Project in order to build the controversial Delta Tunnels.
Tunnels opponents say the massive 35 mile-long tunnels planned under the Delta would hasten the extinction of Sacramento River winter-run and fall-run Chinook salmon, Central Valley steelhead, Delta and long fin smelt, green sturgeon and other species, as well as imperil salmon and steelhead populations on the Trinity and Klamath.
The motions by Delta region local governments, public agencies, public trust advocates and environmental and fishing groups were filed as a result of emails disclosed under a California Public Records Act (CPRA) request filed by Patrick Porgans of Porgans and Associates.
I will post more information on this as it becomes available. The letter from hearing officers is below:
CALIFORNIA WATERFIX HEARING – RULING ON MOTIONS FOR CONTINUANCE
This ruling addresses the outstanding motions for continuance of Part 2 of the hearing in this matter.
On January 12, 2018, Save the California Delta Alliance (SCDA) moved for a continuance of the hearing while the hearing officers address alleged ex parte communications between State Water Resources Control Board (State Water Board or Board) staff and staff and consultants of the Department of Water Resources (hereafter, DWR staff).1 Deirdre Des Jardins with California Water Research joined the motion in part and added a motion for a “partial conversion” of the proceeding.
Ms. Des Jardins also submitted a separate motion for continuance on January 28, 2018, on grounds similar to those included in SCDA’s motion. On January 15, 2018, County of Sacramento, Sacramento County Water Agency, County of San Joaquin, City of Stockton, Sacramento Regional County Sanitation District, City of Antioch (Antioch), and Local Agencies of the North Delta filed a request for stay or continuance of the hearing pending the production of public records, formal discovery, and a hearing to address the alleged ex parte contacts between State Water Board staff and DWR staff. The request was joined by numerous parties.3 On January 19, 2018, DWR submitted a consolidated opposition to SCDA, et al.’s, and County of Sacramento, et al.’s respective motions for continuance. On February 5, 2018, we received a motion from Patrick Porgans seeking a continuance and entry of alleged ex parte communications into the record on grounds substantially similar to those raised in SCDA, et al.’s motion.
On January 25, 2018, Antioch submitted a separate motion for continuance in which it urged:
(1) re-opening Part 1 based on changes to the proposed operational scenario for the WaterFix Project and (2) continuing Part 2 based on reports that DWR and the U.S. Bureau of Reclamation (collectively, Petitioners) are considering modifying the proposed project to comprise one tunnel rather than two. DWR opposed Antioch et al.’s motion on January 30, 2018. On January 31, 2018, the Natural Resources Defense Council, Defenders of Wildlife, and The Bay Institute (collectively, NRDC, et al.) filed a motion to continue Part 2 based on similar reports that Petitioners were considering a one-tunnel proposal.
On January 17 and 31, 2018, we directed hearing team staff to cancel hearing days prior to February 8, 2018, to give us time to review the procedural motions addressed by this ruling. We have now independently reviewed the motions, joinders, oppositions, and supporting materials.
For the reasons discussed below, we find that no changes to the WaterFix project have been proposed that would warrant re-opening Part 1 or staying Part 2 at this time. Further, we find that the communications between State Water Board staff and DWR staff that are the subject of the motions either concerned non-controversial, procedural issues or were properly limited in scope to California Environmental Quality Act (CEQA) consultation between lead agency and responsible agency to ensure analysis of an adequate range of alternatives. We find that those communications did not violate the law prohibiting ex parte contacts, nor are the communications evidence of an unacceptable risk of bias that would warrant disqualification of hearing team members or the decision-makers in this proceeding. Finally, the possibility that grounds for a stay or other procedural steps could be found in responses to pending Public Records Act (PRA) requests does not justify granting a stay now.
Therefore, all motions addressed by this ruling are denied.
Read the full ruling letter here: 20180206_cwf_ruling