In a vote that could give Gov. Jerry Brown’s $17 billion Delta tunnels plan new momentum, Silicon Valley’s largest water agency on Tuesday will consider changing course and endorsing the controversial project to make it easier to move water to the south.
At a packed meeting last Wednesday, several board members of the Santa Clara Valley Water District — who voted 7-0 six months ago to reject the twin tunnels project — said they are considering reversing that vote now and contributing up to $650 million because the powerful Metropolitan Water District of Southern California, based in Los Angeles, committed $10.8 billion last month toward the plan.
Buying in and forming a partnership with Metropolitan to help design and build the tunnels would secure Northern California a seat at the table to protect the north’s water, they said. Critics, including environmentalists and Delta counties, including Contra Costa County, have called the massive tunnels — each 35 miles long and 40 feet high — a water grab and oppose them.
“It’s important that we stay engaged,” said Barbara Keegan, a Santa Clara Valley Water District board member, last Wednesday. “I do not trust Southern California and agribusiness to be looking out for the interests of Northern California.”
But several independent experts who reviewed the draft partnership agreement that the Santa Clara Valley Water District board will consider Tuesday say key sections are not clearly written. Cost overruns on the massive project — like the multi-billion-dollar price jumps that affected the Bay Bridge and high-speed rail plans — could expose Santa Clara County residents to a blank check of liability in the form of higher water rates or property taxes, they said.
“If I were a board member, at this point I would not be ready to vote,” said Holly Doremus, a UC-Berkeley law professor specializing in water issues. “There are too many uncertainties.”
Chief among them, she said, is whether the district, which is based in San Jose and provides water to 2 million Santa Clara County residents, can leave the partnership without being on the hook for the entire $650 million that the board will consider approving Tuesday. A clause in the document, called a “Draft Joint Powers Agreement,” says that any member agency can leave after giving 60 days notice but will be “held to its financial obligations” that were “incurred while a member,” without specifically defining what that means.
Does it mean just money for early engineering studies, or all the money that the agency had promised?
At the least, the board should clarify that language and put a cap on the $650 million to protect ratepayers, Doremus said.
Another key question is whether the state can charge cities and water districts anyway to build the tunnels, even if they don’t participate in funding the project. Karla Nemeth, director of the state Department of Water Resources, and a former Metropolitan Water District staff member, has said it can. But that point is in dispute by opponents and certain to be tied up in lawsuits.
“This is a take-it-or-leave-it,” said Santa Clara Valley Water District board member Gary Kremen, who said he now supports the project. “Even if we leave it we’re still going to have to pay for it. And we’d have no control.”
Kremen also said the district can walk away without being liable for the full $650 million.
“All of this is unclear enough to be subject to litigation,” said Doremus, the UC law professor. “There’s enough controversy over this that there will be lawsuits. There’s loads of money at stake. There are bound to be some aggrieved water contractors that would have a reason to sue.”
Buzz Thompson, a Stanford University law professor who specializes in water issues, said that the draft documents spell out that the Santa Clara Valley Water District would be allowed to purchase water from the project, but the price isn’t listed.
“If I were a board member, I would want to talk with the legal counsel about exactly what obligations we are potentially open to,” he said. “And I’d want to see the entire package.”
“It’s a very important vote,” he added. “As a result of that you want more due diligence.”
Linh Hoang, a spokeswoman for the Santa Clara Valley Water District, on Monday declined to say who wrote the draft Joint Powers Agreement document.
“No one agency wrote the agreement,” she said, declining requests to name them.
Notations on the draft appear to show that it was written by Stefanie Morris, an attorney with the State Water Contractors, an association of 28 cities and water districts that receive Delta water through the canals, pumps and dams that make up the State Water Project.
Under the proposal, the partnership created would design and build the tunnels — one of the largest public works projects in state history — which would be paid for through higher water rates. There would be five seats in the partnership. Metropolitan Water District would get two. Santa Clara would get one. Kern County Water Agency in Bakersfield would get one, although it hasn’t yet voted to approve the agreement. And the State Water Contractors would get the fifth seat.
On Monday a spokeswoman for the contractors said the Zone 7 Water Agency, which supplies 220,000 people in Dublin, Pleasanton and Livermore, has been named by the contractors to that seat.
Last week, San Jose Mayor Sam Liccardo endorsed the project, which the Brown administration calls “WaterFix,” and is supported by construction unions and the Silicon Valley Leadership Group. But Rep. Anna Eshoo, D-Palo Alto, urged a no vote. She cited concerns about the price tag, which water district staff said would increase rates by up to $10.26 per month by the time the tunnels are operational in 2033.
“In my view, WaterFix remains plagued by high costs and mismanagement that justified the board’s prior rejection of this project,” Eshoo said.
Jay Lund, an engineering professor at UC Davis and director of the school’s Center for Watershed Sciences, said that given the cost overruns that often occur on large projects, Santa Clara Valley Water District’s board should clearly impose a cap on how much it will contribute, so that it isn’t outvoted by Southern California interests and potentially vulnerable to being hit with cost overruns.
“I think it is important to be prudent in looking at these weighty matters,” he said. “This is a very big project. It has a lot of potentially big upsides, and large downsides.”
