Dave Stirling’s comment letter to the Delta Stewardship Council on the amendment to incorporate the tunnels into the Delta Plan

Mr. Chairman and Members of the Council,

As this letter primarily pertains to a legal subject, let me preface it by summarizing my legal background. Although retired now, I am a 51-year member of the California Bar, with 10 years of active trial practice; three terms as an elected member of the state Assembly; two terms confirmed by the state Senate as General Counsel of the California Agricultural Labor Relations Board; a Superior Court Judge in Sacramento County; and Chief Deputy Attorney General, California Department of Justice. My family and I have resided in the Delta community of Walnut Grove for over 30 years.

In 2009 the legislature enacted the Delta Reform Act. The Act declares two co-equal goals for the BDCP/California WaterFix/Tunnels project: (1) “providing a more reliable water supply for [Central and Southern] California,” and (2) “protecting, restoring, and enhancing the Delta ecosystem.”

Although seldom mentioned or taken seriously, the Act also contains a most important condition that is legally tantamount to a third co-equal goal – namely, that the two stated co-equal goals “shall be achieved in a manner that protects and enhances the unique cultural, recreational, natural resources, and agricultural values of the Delta as an evolving place.” (CA Water Code Sec. 85054.) In my legal opinion, this clearly means that the two stated co-equal goals must not only protect and enhance the mentioned characteristics and assets of the Delta, but cannot cause material damage or degradation to them. Additionally, this – what I call a third co-equal goal – can and will be enforced in court. Frankly, I cannot conceive of any judge who would not treat a lawsuit raising these issues seriously.

In the Delta Plan amendment pending before the Council, titled “Water Conveyance, System Storage, and Operation of Both,” your staff is urging you to adopt a new BDCP/California WaterFix/Tunnels policy, one that changes how, where and when the infrastructure additions or modifications that are within the scope of the California WaterFix project are to be determined and located. In particular, instead of directly identifying the location of the current Alternative 9 project intakes as the Delta Cross Channel and Georgiana Slough, or any referencing any of the Alternatives, the proposed amendment would promote “a (vague) package of conveyance and storage options” that identifies them merely as “Through-Delta Separate Conveyance/Conveyance Type.” One of the conveyance options being promoted is “Dual Conveyance” of CVP and SWP water supplies. Among other effects, the amendment leaves to a later undisclosed date the selecting of specific locations for placement of CaliforniaFix intakes and other related infrastructure. If adopted, there would no longer reference to specific “alternatives” and their Alignment Options or Conveyance types, but refer to them by the benign and undefined name “Through-Delta Conveyance” or ‘Dual Conveyance.”

However, in a document entitled “Overview of Alternatives” in the EIR/EIS for the California WaterFix project, a copy of which is attached as Exhibit A, 15 different alternatives are listed by number, together with their Alignment Options, Conveyance Type, Intake Location, and North Delta Diversion Capacity. Interestingly, Alternative 9’s Alignment Option is referred to as “Through-Delta Separate Corridor,” its Conveyance Type is defined as “Through-Delta,” its Intake Location is “Delta Cross Channel and Georgiana Slough,” and its North Delta Diversion Capacity is stated as “15,000 cfs.” From this it is fair to conclude that regardless of what it is called – a project or a program – the Delta Cross Channel and the Georgiana Slough sites (within the Legacy communities of Locke and Walnut Grove) are likely candidates for installation of two huge intakes and several large associated infrastructure facilities.

Please understand why the people of the Delta’s primary zone, and now especially the people of the Legacy communities of Locke (founded in 1909) and Walnut Grove (founded in 1850), are having a “trust” problem (as Lester Snow coined it at the last hearing on April 27^th) over the way the California WaterFix project is being pushed forward – entirely over our often and firmly stated concerns. The Delta Plan amendment pending before you appears to us to be nothing more than an effort to hide the ball, keeping us – the people who would have to live with the impacts of whatever is ultimately decided as to location, conveyance type, and diversion capacity – in the dark until it is too late in the planning process to speak out against a plan that severely damages, degrades, and even destroys the homes, businesses, and quality of our lives in the communities in which we have chosen to live.

As an aside, going through this decades-long California WaterFix process, including whether the infrastructure additions or modifications are called “projects,” as with Alternative 4/4A or Alternative 9, or “programs” as your staff is urging, is primarily a waste of time. It is not difficult to conclude that with its preliminary planning and engineering nowhere near completion, followed by some six years or so of litigation, followed by 4-5 years of land acquisition, hiring workers, and other pre-construction necessities, followed by some 11 – 13 years of actual construction –assuming no lengthy delays due to unforeseen problems – it could easily be 2036 – 2040 before the California WaterFix twin tunnels project would be operational. For as long as we argue over whether to go forward with what is the most enormous water-based infrastructure project ever conceived, the co-equal goal of “protecting, restoring, and enhancing the Delta ecosystem” is threatened. By the time the California Water/Fix project is operational, who will remember the Delta smelt, the Sandhill cranes, and other fish and avian species that once called the Delta home?

Ultimately, the only issue is the legal one: whether the implementation of the two stated co-equal goals as proposed by the California WaterFix plan, including the intellectual sophistry of the amendment pending before you, will protect and enhance the Delta’s stated characteristics/assets, or damage or degrade those assets. Sooner or later that is what the lawsuits will focus on. And in my opinion, the evidence is overwhelming and undeniable that the Delta will be irremediably reduced to a grotesquely devolving place. Here are only a few evidentiary examples of how implementation of the Delta Reform Act’s two stated co-equal goals, as presently constituted, including the pending Delta Plan amendment, would damage, degrade, and even destroy “the unique cultural, recreational, natural resources, and agricultural values of the Delta as an evolving place.” These are set out in no particular rank of priority.

• Under the “Dual Conveyance” or “Through-Delta Conveyance,” as the pending amendment would call it (heretofore known as Alternative 9) two 2,800 foot-long intakes, each with a diversion intake capacity of 7,500 cfs, together with two pumping plants, would potentially be constructed, one at the Delta Cross Channel, and one at the Georgiana Slough. The two intake structures would be accompanied with adjoining fish screens that would extend above the top of the levee. (See simulation view in Exhibit B attached.) Also, at the Georgiana Slough location, a new gated intake control structure with a flood flow capacity of 20,600 cfs would potentially be constructed. The intake construction process at each location would also require the installation of temporary cofferdams to create a dry work area within the subject waterway. As depicted in Exhibit B attached, both intakes would be equipped with levee-high, unsightly barrier fish screens. (EIR/EIS, Ch. 9.)
• The two above-described intakes with unsightly fish screens, each being 2,800 feet in length, would extend from the north end of Locke (requiring the razing of the active, commercial, privately-owned Locke boathouse) to beyond the very south end of Walnut Grove – virtually back-to-back structures. The two new intake facilities would necessitate the widening of existing levees on the landside to increase crest width, to facilitate intake construction and accommodate the realignment of busy State Highway 160. The new intake facilities would also include gantry cranes, log boom and log boom piles, riprap, and electrical buildings. (EIR/EIS, Ch.6.) Further, construction of the Georgiana Slough intake would require the relocation of a levee and associated road to create space for a boat channel and lock to allow continued boat access between the Sacramento River and Georgiana Slough. (EIR/EIS, Ch. 3.) Because this stretch of levee road is where most of the businesses in these two communities are located (not more than 100 yards away from the path of the intakes), the construction and placement of the two new intakes under the amendment would not merely diminish or degrade the two legacy communities, they would utterly destroy them. But that’s not all.
• Also potentially to be constructed under the amendment are an approximate 2-acre concrete plant and 2-acre fuel station on the east bank of the Sacramento River between The Meadows Slough (near the Delta Cross Channel) and the community of Locke. (EIR/EIS, Ch. 3.) This would further exacerbate the transportation impact on the River Road.
• For purpose of comparison and to better understand the scope and dimension of the amendment’s potential footprint on the North Delta, consider the following: The intake facility on the Sacramento River at Freeport, near the Water Tower, has a diversion capacity of 300 cfs. The two intake facilities in Locke and Walnut Grove would have a combined diversion capacity of 15,000 cfs. The three northern intakes near Clarksburg, Hood, and Courtland have a combined diversion capacity of 9,000 cfs, So the use of land between Clarksburg and Walnut Grove (which includes the communities of Hood, Courtland and Locke) will potentially be 80 times larger than the land use and water diversion at the Freeport facility, In addition, land between Clarksburg and Walnut Grove will also be taken for pipelines, forebays, barge loading facilities, cement plants, and other large construction projects.
• In a statewide survey offering 300 different state waterways, California boaters ranked the Delta as one of the most popular boating destinations in the state, with only the Pacific Ocean, San Francisco Bay, and the Colorado River ranking higher. There are many Delta facilities for boaters, both private and public, including ramps, yacht clubs, and marinas; many offer fuel, supplies, waste pump-out facilities, and guest docks. Restaurants and other businesses in the Delta can be easily reached by boaters. For example, the communities of Walnut Grove and Isleton offer guest docks for temporary boat tie-up. “For many Delta residents, especially those arriving in more recent years, choosing to reside in the Delta is based on a desire to combine the urban lifestyle of nearby Sacramento and the Bay Area with a physical setting that provides relatively easy access to an extensive system of waterway.” (EIR/EIS, Ch. 16.) If you approve the proposed Amendment to the Delta Plan, (combining the equivalent of Alt. 4/4A and Alt. 9), 93 residences, 76 recreational structures, and 28 “other” structures in the Delta, including bridges, would potentially be razed or severely degraded. (Table 13-12 Land Use Chapter of the EIR/EIS.)
• The DWR proudly proclaims that “over 75 percent of Delta soil . . . is classified Prime by the U.S. Department of Agriculture – making Delta farms rank among some of the richest farmland in the world.” But as indicated at EIR/EIS, Ch. 14, nearly 4,000 of these privately-owned Prime agricultural acres will be permanently taken (the DWR calls it “conversion”) for physical structures associated with the construction of 35 miles of intakes, forebays and tunnels. Still many other agricultural acres will be taken for staging areas for construction equipment, tunnel segments, and the like. DWR says these will be taken for “temporary construction use,” directly precluding agricultural use during much of the approximately 13-year construction process. But, no Delta career farmer whose land is converted for more than a decade to so-called temporary construction uses would be inclined or even still around to resume farming heavily abused farm land when the project is completed.
• Changes in Community Character. Over the estimated 13-year duration of the actual construction process, the increase in serious noise, traffic, air pollution, major visual degradation, and other physical and emotional pressures will erode the spirit, culture, and economies of the small Delta Legacy communities. All quality-of-life activities in Delta neighborhoods, at its schools, within its churches, libraries, community centers, businesses, and civic organizations will be irreparably degraded. As these communities and the land in between become increasingly less desirable places to live, work, farm, visit, recreate and shop — including wine-tasting at some of the state’s finest wineries, bicycling on picturesque country roads, boating or waterskiing on Delta waterways, fishing, hunting, hiking and bird-watching — property values will decline. In time, battered by the physical, mental and emotional onslaught of the tunnels construction’ upheaval on one side, and being unable to sell their homes or property because there are no buyers desirous of living in the Delta under those conditions on the other, many Delta residents, farmers, and the owners of small businesses will sadly have no alternative but to abandon their property. Some will be forced to default on their bank loans. Although Chapter 16 of the Final EIR/EIS speaks of “Abandonment of Property,” it fails to convey the full extent to which this will occur. This will certainly be the case in and around the communities of Locke and Walnut Grove if the amendment is approved.

On behalf of the people of Walnut Grove and Locke, I thank the members of the Council for the time and thought they have given the amendment issue before them. I ask you now to recognize that with a “No” vote on the amendment you will help to give voice to the 500,000 Delta primary-zone residents who are justifiably afraid that we might lose our homes and neighborhoods, our businesses, our jobs, and the long-embraced the rural Delta lifestyle we have chosen. The passage of this amendment will only contribute further to these fears and make our fight more difficult. We humbly request that you vote “NO” on the amendment. Thank you.

Dave Stirling,

Walnut Grove, CA