Posted by: Jan | May 29, 2016

We Won!


(Revised 6/1)
Our Legal Council, Michael Brodsky, sent me an email last week saying “We Won!” He was referring to our law suit against the Delta Plan. After reviewing the legal document (ilk – legalese) I realized that not only did we win our law suit, but how great a lawyer Michael Brodsky is. We are so lucky we have him! Oh, and by the way, he has never charged us for his legal fees. And the time he has spent on Delta issues is, to quote Bernie, YUGE.

Save the California Delta Alliance (STCDA) was one of many plaintiffs who had filed suits against the Delta Plan, saying The Delta Plan promoted the tunnels and failed to protect the Delta or the environment.

Because of our win, the Delta Plan will need to be revised to include quantified or otherwise measurable targets associated with restoring more natural flows as required by the Delta Reform Act. This is big!

The plan also needs to incorporate options for water conveyance and storage systems. The loss of ground water storage and no mechanism for recharging the water table has been a center of our arguments from the start.

In addition, two suits were filed by the water contractors, saying The Delta Plan didn’t guarantee them enough water. Go figure.

The stacks of legalese that Michael submitted was amazing. He then attended multiple hearings and argued our case. To remind everyone, Mr. Brodsky has worked tirelessly on behalf of the Delta since the community met him in 2009.

October 2009 was the first Town Hall Meeting held in the Discovery Bay Elementary Gym. The purpose – to hear from the USBR about why they were planning on installing two dams in our waterways – one dam blocking boat traffic on Old River between Discovery Bay and Bethel Island, the other dam on Connection Slough between Mildred and Bethel. The two together would have totally blocked boat traffic whenever the Bacon Island Bridge was non-operational – and back then, it only operated certain hours and certain days, IF it wasn’t down for maintenance issues. The USBR was calling them “Fish Protection Gates” and claimed boat traffic could pass through on ebb tides. The gates would be open for 5-10 minutes every six hours, with the timing depending on the tides. Try to plan your boating excursion around that! So for most of us boaters, we considered them dams. The USBR also said they would only operate part of the year. But, the structure would narrow the river from 180 feet to 75 feet wide. It reminded me of the issue we had in Canada, going through narrow channels. That would create a class 3 rapid during the time of year when not operational and a boat tried to traverse it any time other than ebb tide. No thank you – I’m not taking my boat through there, ever.

The gym was packed to the hilt. The USBR representatives were taken aback. The night before, they had met with a small group of farmers in Fresno, about fifteen, who were very happy about the prospect of installing these gates/dams. Happy, because they were told that then the pumps could export even more water to them. That the gates/dams would block the Delta smelt from getting into the pumps and stop judges’ orders from halting the pumps. THEN they came to Discovery Bay. Five hundred angry boaters and citizens greeted them.

They gave their briefing about the benefits of these so-called Fish Protection Gates. I asked them about what the boaters were supposed to do. They responded with, “They can just go the other way when the gate on Old River is closed.”

I asked, “The other way? What about the Bacon Island Bridge? Will it be operational 24×7?”

They looked at each other and said, “Bridge?” They didn’t even know there was a bridge on Middle River that was often closed and which big boats couldn’t fit under.

But it was when Michael Brodsky stood up, that the meeting took a turn for the worse (for the USBR Project Managers doing the briefing). None of us knew who he was. An articulate, gentleman, who asked to be heard and strode to the front of the room to speak with the presenters.

“I’m a resident of Discovery Bay,” he started. “Why wasn’t I informed about this meeting until the last minute? I just saw signs as I drove into the community tonight?”

The USBR Project Manager hemmed and hawed. His opening statements reminded me a bit of Columbo, starting simple, then getting to the meat.

“Furthermore,” he continued, “I wondered what approval you are planning on before installing these gates. Have you filed your NEPA papers? Your CEQA?”

“Huh?” we in the audience looked at each other. “What’s that?”

The USBR Project Manager said, “We don’t need to file a CEQA report, or a NEPA. These are temporary gates”

“Yes you do,” the stranger countered. And he started listing off the reasons why this project needed to follow all of the National Environmental Protection Act and California Environmental Quality Act requirements.

Then he really got them. He said, “And what about the erosion behind the gates?” He had a more technical term for it. “Have you studied the erosion that will occur to the levees?”

The female project manager replied, “No, there will be no erosion . . ,” while her boss, standing next to her leaned over to her and said, “Yes there will be.”

We didn’t know him at the time, but Michael Brodsky has become the most valuable asset this community and the Delta has. He wouldn’t admit it, though.

Summary of the Delta Plan Lawsuit

There were seven lawsuits filed in all. Two were filed by water contractors (Metropolitan Water District, Westlands Water District, etc.) who rob us of our Delta water. They wanted to weaken what little Delta protections were contained in the Delta Plan. They lost on all points. Another suit was filed by the City of Stockton. Stockton argued that less water should be exported from the Delta, but unfortunately was unsuccessful.

Three other suits were filed by a number of local water agencies, Delta farmers, and environmental groups. And finally, there was our lawsuit. We worked closely with the three other “white hat” groups and all four lawsuits were successful in winning additional protections for the Delta and making it a bit more difficult for the water contractors to go forward with the tunnels. All of the white hat lawsuits made important contributions to the final victory.

The other good guys in these cases on our side are: California Water Impact Network, Friends of the River, California Sportfishing Protection Alliance, AquAlliance, Restore the Delta, Center for Biological Diversity, Central Delta Water Agency, Lafayette Ranch, Local Agencies of the North Delta, Cindy Charles, North Coast Rivers Alliance, Pacific Coast Federation of Fishermen’s Associations, San Francisco Crab Boat Owners Association, and the Winnemem Wintu Tribe.

The bottom line is that the Delta Plan will have to show a meaningful effort to reduce reliance on the Delta as a source of exported water, do more to reduce harm from invasive species (including those nasty weeds!), do more to restore freshwater flows and put some numbers on how much water should be left flowing through the Delta, and promote options for conveyance and storage solutions. This last point means the Delta plan may not simply rubber stamp the tunnels.

We should be able to recover our court costs and may be able to recover some attorney fees from the losing parties, but the attorneys have to go back to argue for their legal fees.

I’m hoping Michael gets some his fees awarded – he deserves it! We are so lucky to have him.

However, there are three or four major cases still to go if we are to completely stop the tunnels. It could take years to collect any attorney fees from the Delta Plan lawsuit, so please donate so we can keep up the battle!

Or send donation check made out to “STCDA” and mail to:

STCDA
P.O. Box 1760
Discovery Bay, CA 94505

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