The San Luis & Delta-Mendota Water Authority has filed a motion to disqualify State Water Board officers Felicia Marcus and Tam Doduc.
Imagine getting arrested and during your first court appearance the judge tells you that you’re guilty. Imagine then that the judge says that you’ll receive a trial but the only outcome in question is how long you’re going to spend in jail.
It doesn’t matter that there has been little evidence to justify your arrest or whether the court is even considering information appropriate to your case. What’s done is done and you will be suffering the consequences despite the obvious predetermined opinion of the court.
Imagine no further. That is essentially what is happening with regard to the State Water Resources Control Board’s authority to consider a petition to request additional points of diversion for the state’s water supply.
The U.S. Bureau of Reclamation and California Department of Water Resources filed a joint petition for additional points of diversion for the California WaterFix project. This petition asks the State Water Board to allow federal and State Water Project diversions to be moved from their existing location near Tracy to a spot on the Sacramento River just south of Sacramento.
On February 11, prior to any evidence being considered, State Water Board Hearing Officers Felicia Marcus and Tam Doduc issued an order that concluded:
“The appropriate Delta flow criteria will be more stringent than petitioners’ (USBR, DWR) current obligations and may well be more stringent that petitioners’ preferred project.”
When questioned on their decision the Hearing Officers referred to a 2010 Flow Criteria Report that the State Water Board earlier admitted provided insufficient evidence to justify a ruling in this proceeding that existing Delta flows are insufficient. At the time the State Water Board issued the report, it recognized that it did not consider potential impacts on cold water pools for Delta tributaries, other public interest matters, including economics, power production and human health, as well as the effects of flow measures on non-aquatic resources, such as habitat for terrestrial species. The State Water Board is required to balance competing uses and consider the social and economic consequences of its decisions, unlike ESA regulatory decisions where no requirement exists of considering human impacts.
Based on the predetermined nature of the February 11 Order, the San Luis & Delta-Mendota Water Authority filed a motion on March 21 “seeking disqualification of Hearing Officers Marcus and Doduc.” The motion is based on Marcus and Doduc deciding, before having the opportunity to consider evidence, that additional Delta flows will be necessary to satisfy them prior to approving the change of diversion petition.
Simply put: The State Board has decided guilt, or in this case “liability”, before anyone has had an opportunity to submit any evidence.
If this occurs in court, a judge would be automatically disqualified. Marcus and Doduc are the judges here and it appears that they should also step down and allow the process to move ahead without question of fairness.
The Hearing Officers for the State Board cannot claim to be operating in an impartial process when they’ve announced upfront what the conclusion is going to be. That kind of thing should resonate with every Californian whether they’re walking down the street minding their own business or delivering water to the public.
Read the San Luis & Delta-Mendota Water Authority’s motion here.