State water board cancels WaterFix hearings
Move comes after groups claim state officials engaged in unlawful communication about Twin Tunnels project
The State Water Resources Control Board on Wednesday canceled all hearings on the California WaterFix project from today until Feb. 1 to investigate alleged unlawful communications between state officials.
According to a memo from the SWRCB’s hearing team, the claims will be investigated during this time. Hearings are expected to resume on Feb. 2
Opponents of the California WaterFix project, also known as the Twin Tunnels, asked the SWRCB on Tuesday to postpone Thursday’s hearing, claiming illegal communications between SWRCB staff and the Department of Water Resources, according to Mark Myles, San Joaquin County Counsel.
“Right now, we have evidence of about seven to nine meetings. I wasn’t in those meetings, so I don’t know specifically what was discussed. But, based on documents we requested, they discussed evidence that the Department of Water Resources would have to present to make their case at the hearing. Our goal isn’t simply to postpone the hearing. Our goal is that they (SWRCB) craft a method or something to address this improper conduct,” Myles said.
The California Natural Resources Agency, of which the DWR is a part, declined to comment on the claims.
After the SWRCB issued a hearing notice in August 2015, staff from both the DWR’s hearing counsel and the SWRCB’s hearing team reportedly discussed matters that could influence the hearing’s outcome between Sept. 15, 2015 and October 2016 without informing or involving the project’s opponents such as the Save the California Delta Alliance (SCDA), according to Thomas Keeling, an attorney from the Freeman Firm in Stockton who filed the 20-page motion to stay the hearing.
In a letter to Michael Brodsky, an environmental attorney working with the SCDA, on Jan. 8, 2018, SWRCB attorney Nicole Kuenzi claimed that the water board only met with DWR representatives to ensure that the DWR included any potential environmental impacts in their environmental impact report. She said that the water board was fulfilling its responsibilities under the California Environmental Quality Act, and that any possible legal issues are not within the scope of the hearing.
“The subject matter of these meetings was restricted to factual and legal matters related to the EIR. To the extent that any underlying factual information discussed during the meetings may be related to any controversial matter within the scope of the hearing for the change petition for the WaterFix Project, State Water Board staff did not share this information with any member of the State Water Board,” Kuenzi said.
During an email discussion between DWR representatives and SWRCB hearing team members on June 10, 2016, hearing team members allegedly advised the DWR about the modeling analysis in their environmental impact report, according to the motion. Keeling explained that modeling, a scientific method of estimating results of changing conditions such as water levels and salinity, is one of the most critical aspects of the hearing.
The DWR is considered a litigant in the proceedings, and the SWRCB’s hearing team is supposed to advise the board on whether to approve the proposed project in the Sacramento-San Joaquin Delta, Keeling explained. Therefore, Keeling claims, their alleged meetings, emails, phone calls and online video conferences regarding evidence the DWR should present would constitute ex parte communication, which is illegal.
“This is the largest, most expensive, most controversial public project in California. It is heavily dependent on modeling. How is it that the Department of Water Resources and members of the (SWRCB) hearing team can have ex parte communications without violating the law? We don’t believe they can. This pattern of ex parte communication certainly tokens a bias and predecision that justifies a stay until appropriate actions can be taken,” Keeling said.