By Dan Bacher

As salmon, steelhead and other fish species move closer to extinction – and the Delta smelt is now functionally extinct in the wild – a coalition of environmental groups and the Central Delta Water Agency are demanding that the State Water Board take action on outdated DWR water rights before the approval of the embattled Delta Tunnel is even considered.

DWR is the state Department of Water Resources.

After waiting 14 years, water rights protestants to a 2009 proceeding have filed a complaint against the State Water Resources Control Board alleging that it has given preferential treatment to DWR regarding what they call “antiquated water rights claims.”

They also claim the board “failed to implement state laws requiring the reasonable and equitable development of water diversions and the protection of water resources in the state.”

“DWR is still relying on water rights permits for the development of the controversial Delta Conveyance Project that were issued in 1955 and 1972, despite dramatic changes in the population size of California and in the hydrological cycle due to climate change,” said a statement from the Central Delta Water Agency, the California Water Impact Network, AquAlliance and the California Sportfishing Protection Alliance.

The legal complaint also alleges that DWR has “failed to comply with state water rights law requiring water rights be timely put to full beneficial use; the purpose of this requirement is to safeguard the public interest.”

The key issues in this new lawsuit are:

• “DWR’s Petition for Extension of Time has unreasonably delayed following development timelines dating back to 1955 and 1972 that required construction by 1980 and use by 1990; then construction by 2000, and use by 2009.
• DWR is trying to resurrect these “expired” rights to serve the Delta Tunnel without having perfected them according to the State Water Board’s ordered development schedule.
• The Water Board is giving preferential treatment to another state agency by ignoring these protests and allowing DWR to flout its permit requirements while holding other applicants responsible for meeting the water development timelines in their permits.
• Since the millions of acre-feet of water DWR claims it has rights to divert into the Delta Tunnel have never been applied to full beneficial use and cannot be reliably delivered, it is courts have sometimes termed ‘paper water’ which exists as an accounting tool but is ‘worth little more than a wish and a prayer.’”

The complaint, filed with a Fresno County judge, alleges that the Water Board normally cancels the rights of other water rights applicants that don’t use water or “put water to beneficial use” within the development period in their permit.

Critics of the Tunnel emphasize that failure to follow this ‘diligence’ requirement would result in massive social and environmental impacts on the Sacramento River and the Delta, and existing legal uses and users of water.

The lawsuit explains that the State Water Board is charged with the orderly development of water supplies in the state, which are increasingly scarce with the demands from 39 million people. Notably, when DWR’s water rights were filed in 1955 and 1972, the state’s population was 13 million and 20.5 million, respectively. 

“The state has changed dramatically in that period, requiring a fresh look at the availability of water for projects like the Delta Tunnel that would remove significant amounts of water from the Sacramento River and Delta,” the litigants contend. “Alarmingly, the water DWR proposes to divert water from the Sacramento River into the Tunnel under its antiquated permits that may no longer be available due to climate change and other events over the last 50 plus years.”

The complaint also alleges that “instead of returning DWR’s petitions for lack of diligence and referring the permits to the licensing section to license amounts actually put to beneficial use during the permits’ valid development period, the [water board] continues to issue notices of changes to DWR’s expired permits, most recently on February 29, 2024 when it commenced the Delta Conveyance proceedings.”

“With the recreational and commercial salmon season canceled for the second year in a row, the State Board needs to implement due diligence requirements evenhandedly,” stressed attorney Osha Meserve, representing the Central Delta Water Agency.  “Here, the State Board has given DWR preferential treatment and is letting DWR cut in line ahead of thousands of other water rights holders as well as water uses necessary to keep the California Delta, its communities and its fisheries healthy.”

Roger Moore, attorney for the California Water Impact Network, noted that “during the 14 years these protests have been unlawfully allowed to languish, authoritative reports, including the State Water Board’s own, have confirmed the Delta watershed is heavily oversubscribed. Enabling DWR’s addiction to ‘paper water’ is a bet against our future that will shortchange California’s fisheries, economy and environment.”

Chris Shutes, the Executive Director of the California Sportfishing Protection Alliance, agreed.

“The State Water Board has let DWR slide for over a decade,” Shutes said. “We hope the court will agree that it is past time for the State Water Board to make DWR play by the same rules as everyone else.”