Delta Tunnels Hearings for Jan. 18 Through Feb. 1 are Cancelled



By Dan Bacher |  January 17, 2018 |   

The California Water Fix hearing team at the State Water Resources Control Board in Sacramento today announced that the Delta Tunnels project hearing days scheduled for January 18 through February 1, 2018 are cancelled.

They cancelled the hearings to give the hearing officers time to review all four motions filed by counties, cities, fishing groups and environmental organizations yesterday asking for a 90 day stay in the hearings due to alleged illegal “exparte communications” and meetings between the Department of Water Resources and State Water Board staff.

“Unless the hearing officers notify the parties of any additional changes to the hearing schedule, the parties should assume that Part 2 of the hearing will resume on February 2, 2018 with policy statements only. Unless rescheduled the evidentiary portion of Part 2 will resume on February 5, 2018,” the team said.

The Save the California Delta Alliance yesterday filed a request for continuance of the California Water Fix proceedings at the State Water Board. The alliance, represented by lawyer Michael Brodsky, alleges ex-parte communications between DWR and State Water Board staff, and requests that steps be taken to correct the problem, such as “disqualification of hearing team members and replacement with administrative law judge; removal of flow criteria from evidentiary hearing and including it with the Bay Delta Water Quality Control Plan update, or dismissal of the petition.”

This emails documenting the ex-parte communications were released through a California Public Records Act (CPRA) request by Patrick Porgans and Associates.

Brodsky was encouraged by today’s decision by the California Water Fix hearing team.

“It’s a recognition that this is a very serious situation and that the ultimate outcome of the hearings could be irrevocably tainted if they don’t take some action on the ethical violations that have taken place,” said Brodsky. “They gave the Department of Water Resources until Friday to respond. It might have been better to REQUIRE DWR to respond.”

“I’d like to thank Patrick Porgans, who brought this whole situation to our attention with his CPRA request,” emphasized Brodsky.  

Read the request for continuance here:  req for continue tofile (002)

San Joaquin County, Sacramento County, City of Stockton, City of Antioch, and Local Agencies of the North Delta also jointly prepared and filed one motion yesterday asking the State Water Resources Control Board (SWRCB) to stay the hearing on the controversial project at least 90 days. 

Osha Meserve, one of the attorneys for the protestants, explained, ”We’re asking the water board to look at the scope of the exparte communications and the implications of those communications for the water rights hearing.  We don’t think part 2 of the hearing should proceed until this critical investigation has been completed, since the entire hearing may have been compromised.”

Tom Keeling, attorney at the Freeman Firm, noted in a recent press release that, “The unlawful ex parte communications in this case are substantive and concern issues at the heart of the ongoing evidentiary proceeding. These ex parte communications violate constitutional due process requirements, California law, rules of the Board itself, and other ethical guidelines that apply in such proceedings.”  

In addition, numerous other counties, water agencies and environmental groups, including the California Sportfishing Protection Alliance (CSPA), have filed joinders — and additional joinders to the motions are expected to be filed. 

“This is an egregious violation of due process,” said Bill Jennings, Executive Director of the California Sportfishing Protection Alliance (CSPA). “The hearing staff and hearing officers are absolutely prohibited from any private communications with any involved parties, since this a quasi-judicial proceeding.”

“There needs to be a full investigation including discovery and depositions of hearing staff and officers.  While the emails reveal significant bias, they represent only the tip of the iceberg,” said Jennings. 

The most critical approval needed for Governor Brown’s twin tunnel legacy project is that of the State Water Resources Control Board. The approval process was initiated by DWR and the U.S. Bureau of Reclamation in August 2015, when they filed a Petition for Change in water diversions. 

The motions were filed at a time when the California Department of Water Resources is going through a major shake-up as opposition to the project builds throughout the state.

On January 11, the agency announced the appointment of Karla Nemeth as DWR Director at the same time that her husband works as a senior strategist for the Metropolitan Water District, a key promoter of the WaterFix. More information: fishsniffer.com/…

Then on the afternoon of January 16, Associated Press reporter Ellen Knickmeyer released a story with updates to the breaking news from last Friday about the Brown Administration’s plan to scale back the Delta Tunnels project.

Her report confirms what many environmental groups suspected when the San Jose Mercury New’s story was published last Friday—“that the state would build one tunnel now, and eventually build the second tunnel at a much later date,” according to Restore the Delta.

The revised state proposal talks of building the tunnels in stages, with one of the four-story-high tunnels built now, and another at some indefinite date,” said Knickmeyer. “Water contractors have previously talked of the possibility of permanently paring the project from two tunnels to one, in hopes of winning support for a smaller project.”





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