Why is the Delta Independent Science Board defending the flawed California WaterFix EIR/EIS?

  • Published on June 20th, 2017

Does Jerry Brown’s California Waterfix/Delta Tunnels plan comply with all environmental laws? Or are his pet scientists whitewashing (or greenwashing) the real – potentially devastating – effects that the plan will have on fish, the rivers they live in, and the people who depend on them?

By Dan Bacherfish

As state agencies push for approval of the waterfix plan in September, Bob Wright, the senior counsel for Friends of the River, on June 14 sent an email to the Delta Independence Science Board members criticizing the “content and tone” of their public review draft for “defending the Final EIR/EIS” for the Delta Tunnels/California WaterFix project “instead of addressing such serious deficiencies as the complete failure of the EIR/EIS to include any alternatives finally beginning to restore through-Delta flows by reducing exports.”

He also criticized them for using language essentially “blaming court decisions enforcing our laws for the length and other problems with some environmental impact statements and reports,” language that plays into the hands of efforts by the Trump administration and Congress to weaken environmental laws protecting fish, water and the environment. He urged them to delete or “drastically modify” that language.

“In the current political climate, the very last thing we need is ‘amendments’ of NEPA (National Environmental Policy Act) and CEQA (California Environmental Quality Act),” wrote Wright.

The National Marine Fisheries Service (NMFS) recently released a draft biological opinion documenting the harm the tunnels would cause to salmon, steelhead, Delta and longfin smelt, other fish and wildlife species, and water quality.

MORE ON THIS: California’s water-stealing Delta Tunnels could be approved in September

The Delta Tunnels project is based on the absurd contention that diverting more water from the Sacramento River for use by corporate agribusiness interests and Southern California water agencies will somehow result in the “restoration” of the San Francisco Bay-Delta Estuary.

Many public trust advocates fear that under pressure from the water contractors and Jerry Brown administration, the “independent scientists” may be following the dictates of political “science” rather than real science and cave into defending this massive water grab, considered by many to be the most environmentally destructive public works project in California history.

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Here is the complete email:

June 14, 2017

Delta Independent Science Board Members  via Email

Re: URGENT Delta Independent Science Board public review draft, Final EIR/EIS for

California WaterFix

Dear Delta Independent Science Board Members:

This follows up some brief comments we made at your teleconference meeting two days ago about your public review draft of your review of the Final EIR/EIS for the California WaterFix Delta Water Tunnels project. First, we were surprised that the content and tone of your public review draft is oriented to defending the Final EIR/EIS instead of addressing such serious deficiencies as the complete failure of the EIR/EIS to include any alternatives finally beginning to restore through-Delta flows by reducing exports. The draft actually includes language in the last paragraph (at p. 14) stating:

These comments should not be taken as criticism of those who have assembled the information, carried out the analyses, and prepared the BDCP and WaterFix environmental documents. They followed what the laws, regulations, and permitting processes require. They faced enormous challenges from such a large and complex system. (Emphasis added).

In fact, there have been numerous comments by respected public interest organizations over the years about significant and profound violations of NEPA and CEQA permeating the project environmental documents. Being neither judges nor lawyers, opining that the environmental documents comply with law is not something that you are qualified to do. Many lawyers have concluded that the environmental documents do not comply with NEPA or CEQA and have sostated in formal comments. That inappropriate conclusion should be deleted from your review.

Second, the last two pages of your review in addition to including the above language, includes a whole section (at pp. 12-14): “Reflections: Paralysis by Analysis, and an Opportunity missed.”  This section includes the language (at p. 13) stating:

In our judgment, what the Courts now require to be included in an EIS/EIR can make them so massive as to be incomprehensible . . . Until legislatures amend NEPA and CEQA and  set a new course, we recommend that the agencies prepare a separate document for each project laying out the critical issues for public and scientific review. (Emphasis added).

The new Administration and Congress would no doubt appreciate very much language from independent scientists blaming court decisions enforcing our laws for the length and other problems with some environmental impact statements and reports. In fact, most experienced environmental lawyers and judges who handle these cases would, I believe, explain to you that it is the continuing efforts by some public agencies in some situations to fail to make the environmental full disclosure required by NEPA and CEQA that leads to decisions determining that certain environmental documents fail to comply with law. Another ongoing problem is refusal by some public agencies in some instances, like the BDCP/WaterFix, to include development of real alternatives to projects outof concern that the public would end up favoring such alternatives over the project that the agency and/or its masters wish to carry out.  

This entire section needs to either be deleted or drastically modified, unless it really is your intent to assist efforts to weaken NEPA and CEQA. In the current political climate, the very last thing we need is “amendments” of NEPA and CEQA.


E. Robert Wright

Senior Counsel

Friends of the River 

About the Author

Dan Bacher is an environmental journalist in Sacramento who focuses on California's water issues, a healthy environment for the salmon fishery of the Northwest, and the attempts by big agriculture and big oil to hog all the water.