Big Ag Files Motion Attacking Hearing Officers In Delta Tunnels Proceedings

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On Monday, the San Luis Delta-Mendota Water Authority (SLDMWA), representing corporate agribusiness interests, filed a legal motion to disqualify State Water Resources Control Board Hearing Officers Felicia Marcus and Tam Tam Doduc from overseeing the permit process for the California Water Fix to build the Delta Tunnels.

The Water Authority alleges the Hearing Officers have “predetermined a critical issue” before them, Delta flow criteria.

SLDMWA is one of the water districts placed on “negative credit watch” last week due to its bond guarantor, Westlands Water District, engaging in “Enron accounting.” The Water Authority consists of water agencies representing approximately 2,100,000 acres of 29 federal and exchange water service contractors within the western San Joaquin Valley, San Benito and Santa Clara counties.

Westlands agreed to pay $125,000 to settle the charges filed against them by the Securities and Exchange Commission (SEC), making it only the second municipal issuer to pay a financial penalty in an SEC enforcement action. (

“The San Luis & Delta-Mendota Water Authority (“Water Authority”) hereby moves fordisqualification of Hearing Officers Felicia Marcus and Tam Doduc,” according to the motion. “This motion is made on the ground that the Hearing Officers have predetermined a critical issue that will be before them in this proceeding.”

“When a judge, in court or an administrative adjudication, has predetermined an issue, the judge must be disqualified to protect the due process rights of all parties,” the Water Authority claims.

The motion alleges that the Hearing Officers “revealed” that they “have already reached a “significant conclusion regarding appropriate Delta flow criteria” in a formal order issued on February 11, 2016.

In their order, the Hearing Officers conclude: “The appropriate Delta flow criteria will be more stringent than petitioners’ current obligations and may well be more stringent than petitioners’ preferred project.” Hearing Officers’ Ruling on Pre-Hearing Conference Procedural Issues (“February Order”), p 4.

The Water Authority claims the Hearing Officers “did not qualify or caveat their conclusion in any way. The February Order reveals they have already decided to impose ‘more stringent’ flow criteria.”

The motion is available at:

Barbara Barrigan-Parrilla, executive director, Restore the Delta, responded to the motion’s filing by stating, “Clearly, the large agribusiness water districts on the west side of the San Joaquin Valley know that the tunnels do not pencil out unless they grab more water from the Bay-Delta estuary.”

“They are seeking to manipulate the State Water Resources Control Board permitting process to that end. We can’t help wondering what they fear? Are they worried about what Department of Water Resources or Bureau of Reclamation staff testifying under oath will reveal about water flows?” she asked.

In 2010, fishery scientists from environmental NGO’s, fishery agencies, and independent groups reached consensus at State Water Resources Control Board hearings that the Bay-Delta estuary needed more water flow entering and flowing out of the Delta, according to Barrigan-Parrilla.

The State Water Resources Control Board concluded at that time, ‘The best available science suggests the current flows are insufficient to protect public trust resources.’

“The SLWDMA motion to disqualify hearing officers is an attempt to revise those findings,” she said. “They are vying to establish that more flows through the Delta are not needed so that they can, instead, grab the water to fill the tunnels, in order to make them financially viable.”

“What is an even greater shame is that Governor Brown has the power to stop this 12 to 24 month permit process currently underway at the State Water Resources Control Board for a project that does not have a detailed finance plan outlining who will pay. Westlands, one of the SLDMWA agencies, clearly does not have money to pay for the project. But instead, Governor Brown is allowing this ill-timed process to move forward and these special interest water districts to manipulate legal water planning processes that impact the Delta and the future of the entire state,” stated Barrigan-Parrilla.

She concluded, “California does not need the Delta Tunnels. It needs the Governor to stand up to special interest water districts that manipulate science and finances to their own ends, and to instead lead the real experts, who work for the public good, toward creating a sustainable water future for all Californians.”

The motion was filed at a time when opposition to Governor Jerry Brown’s Delta Tunnels Plan is mushrooming throughout the state – and as is becoming increasingly clear that  the California Water Fix makes no environmental, economic or scientific sense.

In fact, in the video from a recent hearing in the California Legislature, it appears that a Brown administration official is admitting that financial support for Governor Brown’s controversial Delta Tunnels Plan is rapidly collapsing.

On March 11, Secretary of Natural Resources John Laird spoke on behalf of the administration during a hearing in San Francisco by the Senate Select Committee on the Sacramento-San Joaquin Delta entitled, “Pending Delta Decisions and their Potential Economic and Other Impacts on San Francisco & the Bay Area.”

Laird responded to the news that the Westlands Water District, the largest agricultural water district in California and longtime proponent of the tunnels, used “Enron accounting” to mislead investors about a $77 million bond sale, resulting in a settlement with the Securities and Exchange Commission over civil charges.

He described the news as “disturbing” – and then admitted that “it (the California Water Fix to build the Delta Tunnels) won’t move ahead unless people, it pencils out for people and they sign up and they pay.” (