A congressman set off a legislative bomb in California’s water wars last week.
Rep. Ken Calvert (R-Corona) inserted a rider into an Interior Department appropriations bill that would exempt from all judicial review the intensely contested Sacramento-San Joaquin Delta twin tunnels project. Passage of the rider — it’s scheduled for a House committee vote Tuesday — would mean that the water diversion scheme wouldn’t have to follow federal or state law.
The project, known formally as California WaterFix, would bury two 35-mile-long, 40-foot-diameter tunnels beneath the delta. Its backers say its capital costs would amount to $17 billion, but credible estimates including financing start at nearly triple that amount, and its impact on Delta farmers and fish including endangered salmon would almost certainly be severe.
If passed by the House (likely) and Senate (possible) and signed by President Trump (probable), the rider would open a gaping hole in California and federal law. It would render invalid about 20 active lawsuits that have already been filed against various aspects of the project, and that comprise some of the last major barriers to tunnel construction. Plaintiffs include at least 10 local governments, about 30 water districts including the Kern County Water Agency, numerous environmental groups, three fishing organizations and the Native American Winnemem Wintu people.
More important, even though the project is California’s, the product of decades of studies, plans, battles and ongoing arguments about the state’s water needs, the rider constitutes a federal end run around those deliberations and California’s rigorous environmental laws. It’s all too easy to imagine Trump administration officials at, say, the U.S. Fish and Wildlife Service, changing biological opinions to justify increased pumping of water to San Joaquin Valley and Southern California and overthrowing protections for Delta farmers and salmon. If something like that happens, the victims would have no recourse under state or federal statutes.
Passage of the rider would also set a precedent, opening the way for similar end runs on other projects, eliminating the neutral judicial review that is crucial to the rule of law.
In a statement, Calvert explained his willingness to undermine his own state’s law: The project’s “stakeholders have had a plethora of opportunities to express their thoughts and concerns. Now we must move forward.” According to Restore the Delta, a project opponent, Calvert has received campaign contributions from construction and engineering corporations and developers that might benefit from the project.
Jeffrey Kightlinger, general manager of the Metropolitan Water District of Southern California, the project’s biggest booster, tried to distance himself slightly from the rider by tweeting last week that it was “not sponsored or sought” by the MWD, but he cagily didn’t say he disapproved of it. In fact, according to a source in the anti-tunnel environmental movement, Kightlinger has in the past spoken privately of deploying just this stratagem.
Unfortunately for WaterFix’s backers, Calvert’s bomb sends shrapnel in all directions, including theirs. The rider suggests that even the tunnels’ supporters believe the project wouldn’t survive judicial review, that it would be found in violation of environmental laws.
The rider’s reach is so broad that it will probably meet constitutional challenges. It’s sweep could also work against Calvert’s “move forward” goal. For example, last year the state Department of Water Resources filed a suit to validate $11 billion in bonds to fund the project. But if judicial review is canceled, the department’s complaint is too, potentially hamstringing financing for the project.
The rider will surely face obstacles in the Senate, where California’s senior senator, Dianne Feinstein, the ranking minority member of the Appropriations Committee subcommittee on energy and water, has already expressed opposition. She may be able to block the rider singlehandedly. In case her resolve wavers, voters are hereby encouraged to notify her office that they find the rider appalling.
Finally, California’s next governor, who will be elected in November, may not be as enthusiastic about WaterFix as Jerry Brown is. The permit process for the tunnels is likely to extend beyond Brown’s tenure, so the project will require backing from the new governor to ensure that construction proceeds. Should the rider survive, wiping out the possibility of judicial review now and in the future, the new governor may be more inclined to drop the project altogether. Contrary to its backers’ wishes, the rider could turn out to be self-sabotage.