Protestants Charge Illegal 'Exparte Communications' Between Water Board and DWR Personnel

By Dan Bacher January 17, 2018 | 

In the latest battle in the struggle to stop Governor Jerry Brown’s Delta Tunnels project, project opponents today filed motions to stay the hearing for the project, based on what they alleged were “unlawful ex parte communications”  between water board staff and Department of Water Resources personnel that would taint the hearing. 

San Joaquin County, Sacramento County, City of Stockton, City of Antioch, and Local Agencies of the North Delta 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. The hearings were scheduled to resume on Thursday, January 18. 

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.”

According to a joint statement from the protestants, “The stay request is based on recent revelations of unlawful ex parte communications between members of the State Board’s WaterFix Hearing Team, on the one hand, and DWR personnel promoting the twin tunnels in the WaterFix Hearing, on the other.” 

The project opponents said the “ex parte communications” in this context are communications between members of the Hearing Team and advocates for one side, without the knowledge of the other side, the project opponents.

“An analogy would be a substantive discussion between a judge and plaintiff’s counsel in a civil lawsuit concerning the lawsuit itself, without the defendants and their counsel ever being informed that such a discussion took place,” the protestants stated. “The unlawful ex parte communications in this case are substantive and concern issues at the heart of the ongoing evidentiary proceeding.”

They alleged 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” and “irrevocably taint” the WaterFix Hearing

“The requested stay is necessary to allow further investigation into the extent of the ex parte communications and to determine how best to address the ethical misconduct that has occurred,” the protestants concluded. 

Read the motion here: mhttp://www.restorethedelta.org/wp-content/uploads/Motion-to-Stay-or-Continue-WaterFix-Part-2-Hearing.pdf 

The Save the California Delta Alliance has also filed a request for continuance of the California Water Fix proceedings at the State Water Board, Maven’s Notebook reported.

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.” 

Read the request for continuance here: https://mavensnotebook.com/wp-content/uploads/2018/01/req-for-continue-tofile-002.pdf 

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

Also, if the stay isn't granted by the water board, the next step would be  to file a petition with the Superior Court for a stay until the investigation is completed.

“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.

This emails were released through a California Public Records Act request by Patrick Porgans and Associates. 

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 the California Department of Water Resources (DWR) and U.S. Bureau of Reclamation in August 2015, by their filing of a Petition for Change in water diversions. The State Board’s approval of that Petition is essential for construction of the proposed project. The WaterFix Hearing is an evidentiary hearing.  

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/...

In December 2016, I broke the story on the first major staff changes taking place in a major shake-up at DWR, beginning with the retirement of the Director and Chief Deputy Director of the Department of Water Resources: https://www.dailykos.com/stories/2016/12/6/1608051/-Two-top-CA-DWR-officials-are-retiring-at-end-of-year 

In other Delta Tunnels news, Associated Press reporter Ellen Knickmeyer this afternoon 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.”

State water officials are reportedly working on a statement for release, and have not released a new cost estimate for the revised one project proposal. Delta Tunnels proponents charactered the plan to scale back the tunnels as a “desperate maneuver” to keep the project alive when it it makes no scientific, economic or financial sense.

“The Department of Water Resources is functioning at the direction of Metropolitan Water District to begin contracting for construction on a single tunnel project with two intakes, and then to later phase in an additional tunnel as funding becomes available,” said Barbara Barrigan-Parrilla, Executive Director of Restore the Delta.

“This is a desperate maneuver to keep CA WaterFix alive. This is not the project described in the Environmental Impact Report for CA WaterFix, or in the permit application presented by the Department of Water Resources and the Bureau of Reclamation for the hearings at the State Water Resources Control Board,” said Barrigan-Parrilla.

She also said Californians “have a right to know how long construction would take, what the impacts would be on Delta communities, fish, and wildlife under an even longer construction period, how much water would be delivered and when, and what the costs of a phased in project would be.”

“A cost-benefit analysis still needs to be completed. Any attempt to move forward with the project without new environmental documents and project applications is an attempted end-run around California voters and water users. It is bad planning, and bad politics,” Barrigan-Parrilla concluded.