Lawsuit challenges Metropolitan Water’s Delta Islands purchase

By Craig W. Anderson

THE METROPOLITAN WATER DISTRICT of Southern California (MWD) announced it planned to buy five islands owned by Delta Wetlands in the heart of the Sacramento-San Joaquin Delta for $175 million. Before the ink had dried on that agreement a group of concerned citizens’ organizations and water districts had filed a lawsuit demanding an environmental review of the sale.

The lawsuit –filed in San Joaquin Superior Court by San Joaquin and Contra Costa counties, the Central Delta Water Agency, the Contra Costa Water Agency, the Food & Water Watch, and the Planning and Conservation League – challenges the MWD’s purchase of the Delta islands which would ultimately aid the shipment of Delta water to the MWD’s Southern California member agencies at the expense of the Delta’s water supply.

Owens Valley fiasco

In a letter to Jeffrey Kightlinger, MWD general manager accompanying the notice of the lawsuit, Stockton attorney Brett Jolley reviewed the history of MWD’s most infamous water grab: The draining of the Owens Valley of its water in the early 20thcentury when William Mullholland and Fred Eaton “devised a plan to surreptitiously acquire Owens Valley water rights to bring the valley’s water to arid Los Angeles.”

History shows us, Jolley wrote, that the residents and landowners of Owens Valley were assured that Los Angeles would use only Owens Valley’s excess water with no impact in the valley. Unfortunately, this was not the case as Los Angeles began sending water from the Owens River for storage in the San Fernando Valley. Within 25 years Owens Lake had withered from a lush, miles-long natural reservoir into an arid, alkali flat – resulting in dust storms, agricultural difficulties and loss of natural vegetation.

Now, MWD intends to finalize the purchase of 20,000 island acres when escrow closes in June for “’habitat restoration” which includes removing levees to flood farmland, creating an emergency freshwater pathway to send Delta water south, and providing access to equipment

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Lawsuit challenges Metropolitan Water’s Delta Islands purchase

staging for, and receipt of construction debris from the proposed twin tunnel project.

MWD wants exemption

Documents filed by MWD state the land purchase is exempt from environmental review because CEQA (California Environmental Quality Act) only applies to projects with the “potential for causing significant effects.” “Metropolitan is just buying property,” said Cathy Stites, MWD’s senior deputy general counsel. “We don’t believe that constitutes a project under CEQA.”

However, Kightlinger admitted to the press at the time of the purchase announcement that the islands could facilitate building the multi-billion dollar project. It would reduce eminent-domain needs and would provide a storage location for construction dirt.’’

“No significant effect…”

Jolley said the MWD insists that when all of this is completed “It can be seen with certainty that there is no possibility the activity in question may have a significant effect on the environment.”

In fact, the political leaders, residents and landowners of the Delta decisively dispute this claim and “…declare that we will not be the next Owens Valley,” Jolley wrote, “Through this lawsuit we will ask the court to declare that MWD’s actions are not exempt from environmental review and to compel MWD to honestly and transparently disclose the harm that these activities would cause the Delta.”

Stites pointed out that any environmental analysis will come later when MWD had determined specific uses for the land.

MWD use plans revealed

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Lawsuit challenges Metropolitan Water’s Delta Islands purchase

But according to Dante Nomellini, counsel for the Central Delta Water Agency, Stites’ points are moot because “Delta Wetland Properties – owners of the 20,000 acres MWD is buying – has an agreement that the purchaser must sign on to the settlement agreement, period. It addresses the impact on adjacent islands, habitat, farming and other specifics. That MWD has not signed off on this troubles us.”

Specifically, the agreement states Delta Wetlands “will not sell, transfer, lease, license or assign any of its right, title or interest in and to any of the real property on the…islands…without having the proposed transferee execute this agreement.”

And: “Any successor or assignee of Delta Wetlands shall be bound to the terms of this agreement in the same manner and…extent as Delta Wetlands.” And: “Delta Wetlands agrees that it will not delegate, transfer or join with any Party in the operation of the Project unless such party has agreed…to comply with the terms [of the] Agreement.”

Whatever’s needed… Nomellini said that if these, and other sections of the agreement, aren’t adhered to or doesn’t comply with the various sections, “we plan to enforce those sections through all legal and equitable remedies available to us,” which include halting the title transfer until all conditions are met.   Nomellini listed some of the concerns of those filing the lawsuit: • The loss of economically productive farming; • Loss of revenue making it economically impossible to sustain levee maintenance and drainage; • Failure of the Project would make restoration of levees, drainage systems and farmland difficult if not impossible; • Excavations, conversion of farmland to habitat, contaminant storage, increased seepage and degradation of local farming enterprises; • Damage to adjoining lands by seepage with concomitant difficulty in repairing damage.  

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Lawsuit challenges Metropolitan Water’s Delta Islands purchase

Water grab for So Cal   “This is, of course, a water grab,” said Jim Ferrari, SJFB first vice president. “MWD and its agents have no interest in the Delta as a place or an agricultural area. They just want the water.” He said the twin tunnels would probably be worse than the Owens Valley as the tunnels affect all of Northern California and the state. “And the elimination of eminent domain and water rights for the island due to MWDs acquisition will help pave the way for Gov. Brown’s twin tunnels,” he said. “The only way to beat them is through the courts and this current litigation is a good start.”   No EIR?   The MWD is requesting complete exemption from environmental review of the islands when the purchase and transfer take place and the lawsuit requests the court to enjoin MWD from purchasing the property unless and until it completes the EIR mandated by CEQA.   Should the sale be completed MWD would own islands – land – about half of which would be directly in the path of the proposed twin tunnels. Since MWD is the primary beneficiary of the tunnels, the path toward developing them would be streamlined by having a pro-tunnel advocate ready to provide benefits to having Gov. Brown’s plan become a reality.   Purchase help twin tunnel idea?   “This purchase would promote Metropolitan’s effort to build the $67 billion tunnels which will only benefit MWD’s bottom line,” said Brenna Norton, senior organizer for Food & Water Watch.

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Lawsuit challenges Metropolitan Water’s Delta Islands purchase

“And it will cost Southern Californians billons while not providing one drop of new water.”   MWD brazen circumvention of law   “MWD has taken brazen steps to bypass CEQA requirements in order to approve the $175 million Delta island purchase and begin a staging zone for twin tunnel construction,” said Mark Myles, county counsel for San Joaquin County. “MWD’s actions to sidestep CEQA…illustrates the lengths that MWD is willing to go to acquire water for its own purposes without any regard for CEQA laws, environmental review and public input.”   He explained that MWD should “immediately rescind its decision to purchase the islands” and perform the environmental review mandated by CEQA. Myles also said MWD falsely asserts it is interested “only in Delta habitat restoration and therefore its actions are exempt from any form of environmental review.   In-Place agreements observe“The previous agreements need to be ongoing,” said Dave Simpson, chair of SJFB’s Water Committee. “It’s incumbent upon us to protect the water quality of the Delta and let people know what could happen due to this island acquisition by MWD.” MWD doesn’t have the best interests of the Delta at heart and if the tunnels are up and draining, at some point in the future all the river systems feeding into the Delta will be enveloped by the agencies operating the Delta and the systems will be used to the advantage of Southern California and the detriment of Northern California.   In violation of CEQA?   “If the tunnels are built we’ll have no chance of developing water sources and we could be in violation of CEQA and out of compliance regarding water issues and standards with no water available to fix it,” Simpson said. Simpson thinks the land sale will go through but what happens after that is anyone’s guess  

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Lawsuit challenges Metropolitan Water’s Delta Islands purchase

Phil Brumley, past SJFB president, had more than a “guess.” He said, “Using islands isn’t a new idea. Flooding and then shipping the water south is old news. What’s troubling is the idea of someone from outside coming in and controlling the land and sending the water south.”   Prime/unique farmland would be lost   He also said the majority of the Delta’s land is prime or unique farmland and to lose thousands of acres of such land to equipment and muck storage, habitat and flooding under the twin tunnels obsession of Gov. Brown “could leave us with an Owens Valley redux in the Delta.”   Supervisors move forward with lawsuit   San Joaquin County Supervisor Katherine Miller said,” Before this island purchase has any chance of moving too far along, the potential environmental impact must be thoroughly studied. The county has a lot of reservations about this and I don’t think much good will come of it. We intend to move ahead with the lawsuit.”

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