California judge weighs injunction for planned water conveyance project

SACRAMENTO, Calif. (CN) — Petitioners battling over a massive and controversial California water infrastructure project drilled into the details on Friday over what actions require specific authorization before they can occur, with local governments and water districts asking a Sacramento County judge to stop the state water resources department from making any exploratory moves.

At issue are geotechnical actions, like initial drilling and installing monitoring equipment, that the Tulare Lake Basin Water Storage District — and many others — argued don’t have the required green light to proceed. The state Department of Water Resources has countered that a preliminary injunction halting the project’s first steps would do more harm than good.

Superior Court Judge Stephen Acquisto made no decision Friday on the preliminary injunction.

The controversial project, often called the delta tunnel project, consists of a 36-foot wide tunnel extending about 45 miles. Facilities in Sacramento would pump 3,000 cubic feet of water per second into the tunnel, enough for some 5.2 million people a year. Officials have estimated it could take 12 to 15 years to build at a cost of $16 billion.

Arguing in favor of a preliminary injunction, attorney Louinda Lacey said that the preliminary, geotechnical actions are part of the larger project and fall under the California Environmental Quality Act, meaning that means those actions need specific authorization before they can occur.

“A project under CEQA means the whole of an action,” Lacey said.

Lacey pointed to 4- to 8-inch diameter borings that must be made, along with the installation of test wells and trenches as part of the department’s initial project steps.

Acquisto questioned whether those initial actions fell more into the category of design, as opposed to implementation, which would mean specific authorization for them wouldn’t be needed. Lacey argued that if the word “implementation” is given its plain meaning, the department’s early actions are included in that.

Summarizing the department’s argument, the judge said implementation doesn’t occur until the final stage. Exploratory drilling and testing occur before that, and don’t fall into the final category.

“So, there may be a little bit of a gray area,” Acquisto said.

Turning to attorney Elizabeth Sarine, with the state Attorney General’s Office, Acquisto questioned why specific authorization for the preliminary, geotechnical work was required when a final environmental impact report — arguably a much more detailed document — was already approved.

Sarine agreed, saying it would be unreasonable to require further approval.

However, the judge noted that drilling holes in the earth is more than mere design.

“That’s not design,” he added. “That’s doing something.”

Doing something, Lacey argued, would change or alter the physical environment — action that needs additional approval.

Sarine said the process is working. A preliminary injunction would cause harm, and the department would have to stop its exploratory work before it ever got the research it needed.

Before Friday’s hearing began, the judge said there are 10 related cases filed in Sacramento County over the delta tunnel project including the main case filed by the Tulare Lake Basin Water Storage District.

The petitioners point to violations of the state’s environmental quality act, but those aren’t the only complaints raised.

The Tulare district in its suit wrote that the delta tunnel project would add costly new infrastructure to state water facilities and potentially affect the cost and amount of water it can buy from the state.

Additionally, that district said there’s an existing trend of lowered and interrupted water supplies that has led to higher costs. These issues are linked to operational conflicts over threatened and endangered species. The district is concerned that focusing on the delta tunnel project, an already challenging and expensive endeavor, won’t help ease those conflicts.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit