Court sides with Counties and agencies, dismissing DWRs attempt to “validate” bond resolutions to finance the controversial Delta Tunnel Project

January 17, 2024

SOLANO COUNTY – On January 16, 2024, the Sacramento County Superior Court denied the Department of Water Resources (DWR’s) request for an order “validating” bond resolutions that would have financed the Delta Tunnel project known as the Delta Conveyance Project (DCP).  Like its failed predecessors, the DCP would divert water from the Sacramento River near Freeport out the Sacramento-San Joaquin Delta for export to portions of the Bay Area, South San Joaquin Valley and Southern California. 

The Counties of San Joaquin, Contra Costa, Solano, Yolo, Butte, Plumas, and Sacramento, along with related water agencies, challenged DWR’s authority to issue an unlimited amount of bonds to finance the DCP.  

The Court agreed with the Counties and Agencies, ruling that “DWR exceeded its delegated authority when it adopted the Bond Resolutions, which purported to authorize the issuance of the Delta Program Revenue Bonds.”  In reaching this conclusion, the Court rejected DWR’s claim to almost unlimited authority in such matters, ruling that the Water Code “does not give DWR carte blanche to do as it wishes.”  “For DWR to act,” said the Court, “it must have delegated authority.  Although the Legislature plainly delegated authority to DWR, it did not delegate infinite authority.”  

DWR’s attempted to tie the bond resolutions to a purported “Delta Program.”  The Court rejected this gambit, stating:  “In plain words, the problem with DWR’s definition of the ‘Delta Program’ is that [it] is untethered to the objectives, purposes, and effects of the Feather River Project of the CVPA.”  The Court observed: “Since DWR lacks the authority to adopt the Delta Program,” as DWR had defined it, “it necessarily follows that DWR lacks the authority to issue revenue bonds to finance the Delta Project.” 

The Counties and Agencies, other than Sacramento, were represented by attorneys Thomas Keeling and Roger Moore, who described the Court’s Judgment as “plainly correct” and “yet another nail in the coffin of this grotesquely misconceived and outlandishly expensive taxpayer boondoggle.”  Said Keeling and Moore: “This is a victory for the Counties and Agencies, for the taxpayers, for the environment, for Delta farmers and businesses, and for common sense.”