Question of water rights looms over controversial proposed new dam

November 21, 2022
Jesse Vad, SJV Water
by Jesse Vad, SJV Water
The proposed Del Puerto dam would store water in the mountains above Patterson.
Jesse Vad, SJV Water
Jesse Vad, SJV Water

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A controversial proposed dam seems to have a new pathway forward. But how far will it get through California’s byzantine world of water rights? Nobody seems to agree on an answer. 

The Del Puerto Canyon Reservoir is a joint project between the Del Puerto Water District and the San Joaquin River Exchange Contractor Authority on the west side of the San Joaquin Valley.  

A Stanislaus County Superior Court judge on Oct. 31 dismissed a host of environmental challenges against the project as well as all concerns brought by another group of irrigators, the Friant Water Supply Protection Association.

The judge did kick back Del Puerto’s environmental impact report on one issue, a road relocation that he said had insufficient information.

Project managers rejoiced at the ruling. Fleshing out the road relocation is doable, managers said. And with the other major complaints dismissed, the project seemingly has a clearer path forward. 

“We are considering our options and whether to appeal,” said Alex Peltzer, attorney for the Friant Water Supply Protection Association. “Obviously we disagree with the ruling.”

The Friant irrigators are concerned that the diversion and storage of federal Central Valley Project (CVP) water would allow the Exchange Contractors to hold on to water in wet years and still demand a full allocation from the federal government in dry years, which could impact the Friant supply. 

They also contend the Del Puerto proponents need a new, or altered, water right to store some of the water they want to direct into the proposed reservoir. 

The proposed reservoir would cover 800 acres and hold 82,000 acre feet of water. Some of the water would be captured from Del Puerto Creek but other supplies, up to 40,000 acre feet, would be diverted from the Delta-Mendota Canal from the Exchange Contractors’ existing federal CVP allocation, according to court documents.

In the project’s environmental impact review (EIR,) project managers muddled the question of whether they will need new water rights permits, said Peltzer.

The agencies would be taking delivery of the CVP water at the new dam instead of the locations that are specified in the Exchange Contractors original federal contracts. That requires a change in rights which would need to be permitted and the impacts of that change would need to be studied, said Peltzer. 

That may be true in the eyes of the state, according to documents from the State Water Resources Control Board. 

In a letter from the state Water Board’s Division of Water Rights to the Bureau of Reclamation, the state wrote that the project will require multiple regulatory approvals from the board including, “approval of one or more change petitions to add a place of storage and points of rediversion to involved CVP water rights.”

There is potentially a need for a new water right permit for the flow of Del Puerto Creek into the reservoir, said Chris White, executive director of the Exchange Contractors. 

But when it comes to new CVP water rights, project managers seem to disagree with the state. 

In response to comments on the project’s EIR, project managers rejected the idea that any new water right approval will be needed for the CVP modifications. 

“The Project Partners will not require a water right permit or other water right approval involving modification of Central Valley Project water rights,” read the response to comments in the EIR. 

“It’s still early in the process for a water rights application,” said Chris White, executive director of the Exchange Contractors. 

In fact, the dam’s proponents did apply for a water right permit for Del Puerto Creek in 2020. But the application was rejected by the state because the agencies did not pay the full fee of $553,919, according to letters sent by the state Water Board. 

On the federal side, Bureau staff aren’t sure about all the water rights issues either. 

“I’m not clear on exactly what permits will be required,” said Ernest Conant, regional director of the California-Great Basin region for the Bureau of Reclamation. “To the extent that the CVP water is being stored there, there may need to be a further permit for storage. And beyond that, I don’t know.”

The project proponents don’t yet have approval from the Bureau to store and sell CVP water at the proposed reservoir, said Conant. The Bureau will need to put out an environmental impact statement first, which will be subject to public comment. After that process, the Bureau will make a decision on those approvals, said Conant. 

The project has already secured $18 million in funding through the federal Water Infrastructure Improvements for the Nation Act (WIIN.) WIIN Act funding is decided annually and project managers are waiting to hear if the Bureau awards them more for the coming year. 

“Frankly, that’s plenty of money at this point to assist them, help them develop the project,” said Conant. “As things move along, if and when there’s a need for additional funds, I’m sure it will be considered.”

That money hasn’t actually made it to the project managers yet though. It’s still tied up with the Bureau.  

The Bureau is active in multiple water storage projects in California, including Del Puerto. The others are the new SITES Dam, and the expansions of Los Vaqueros Reservoir and San Luis Reservoir. 

“Reclamation definitely has an interest in the project,” said Conant. “The big picture story is that we need additional storage. We’ve got contractors here who are partnering with us and want to build additional storage. So that’s something that we want to encourage and participate in potentially, but no final decisions have been made yet.”

Jesse Vad, SJV Water }

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