23 Dec Public Projects in Turmoil: The Saga Of The Bay Bridge, Delta Tunnels, and High Speed Rail Would Make A Compelling Reality TV Show

The Bay Bridge – The Hits Just Keep On Coming

It took nearly twenty-five years for the Bay Bridge to become a reality and before the paint was even dry on the self-anchored suspension span questions had already been raised about the design and seismic safety of the bridge. The problems have been so severe that the Senate committee responsible for transportation held hearings in 2014 and commissioned a report, both of which blasted Caltrans for its poor handling of the construction project.

Californians spent $6.4 billion to replace the old Bay Bridge eastern span because it was unlikely to survive a major earthquake, but the questions continue to mount on the seismic safety of the new bridge. In March 2013, before the bridge was open, construction crews tightening rods to secure seismic stability structures beneath the bridge deck discovered that 32 of the steel fasteners had cracked. This ultimately delayed the opening because a repair had to be implemented.

Then, in October 2014, Caltrans officials announced that nearly every one of the 423 steel rods that anchor the tower of the new Bay Bridge eastern span to its base were sitting in potentially corrosive water. According to the San Francisco Chronicle, “[s]everal of the high-strength, 25-foot-long rods inspected after the first signs of trouble appeared last month were found to be submerged in several feet of water, in part because not enough grout had been pumped into protective sleeves to keep them dry, officials told members of a bridge project oversight committee in Oakland.”

In April, Caltrans announced that it had discovered one of those anchor rods had failed. Caltrans tested all the anchor rods and a second one failed strength tests; however, all of the other rods passed. In May, Caltrans admitted that one of the rods had not only failed, but that it had fractured. Saltwater intrusion into the bridge tower’s foundation and damage to its anchor rods could be the most serious seismic issues for the project.

In July, Caltrans issued a press release that said: “World Renowned Experts Confer, Focus on Corrosion Protection for Tower Anchor Rods.” Caltrans has yet to announce any findings.

The Delta Tunnels – Like Politics, Do Not Discuss In Mixed Company

Legend has it that Mark Twain once said: “Whiskey is for drinking and water is for fighting over.” He could have been talking about the Delta.

Since the mid-1800’s, the Delta has been altered in innumerable ways. The Delta we see today has little resemblance to the one that existed when the ‘49ers came. The Delta is now a system of manmade levees, reservoirs, and dredged waterways. These improvements are largely designed to support farming, urban development and to provide flood protection. The natural flows in the Delta also can be altered by operation of the State Water Project and Central Valley Project.

The Delta has been stretched to the breaking point and is in decline because of the tremendous growth in California’s population, industry, and destructive droughts. As one of California’s most invaluable natural resources, there is little debate that something must be done to protect our water supply and to protect vital wildlife habitats. But we are as far away today from a solution as we have ever been.

In November 2009, the California Legislature enacted the Delta Reform Act creating the Delta Stewardship Council to address issues affecting the Delta. The Act was one of several bills that addressed water supply reliability, ecosystem health, and the Delta.

According to the Delta Stewardship Council, its mission is to achieve the coequal goals “of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem.” The Act requires these coequal goals “be achieved in a manner that protects and enhances the unique cultural, recreational, natural resource, and agricultural values of the Delta as an evolving place.” (CA Water Code SS 85054) From this came the Bay Delta Conservation Plan (“Delta Plan”).

Many state and local agencies worked to create the Delta Plan, and it went through many drafts, hundreds of hours of public meetings and thousands of public comments addressing the Delta’s ecosystem and water management challenges. One of the most controversial recommendations in the 34,000-page document concerned water diversion tunnels 40 feet in diameter. These tunnels would draw water out of the Sacramento River and route it 30 miles away to existing state and federal diversion canals near Tracy. The intent of the tunnels is to restore the natural water flow of the Delta that has been altered because of massive fish killing pumps that send water down to Southern California.

The Delta Plan was adopted by the Delta Stewardship Council on May 16, 2013, and became effective with legally enforceable regulations on September 1, 2013. Seven lawsuits followed challenging nearly every aspect of the plan, but mainly the tunnels.

The ferocity of the opposition was evident from the breathy news stories.

One from Californians for Fair Water Policy: “Governor Brown and California’s largest corporate agribusinesses have proposed building two underground 35-mile and 40-foot wide tunnels to divert the Sacramento River and maximize water exports from the San Francisco Bay Delta to the southwest San Joaquin Valley. The project is similar to the previously proposed Peripheral Canal, which was rejected by voters in a statewide referendum in 1982.”

Another one from an organization called Restore the Delta: “Gov. Brown has proposed massive underground water export tunnels now called the “California Water Fix” though it is essentially the same project as the peripheral canal, which California voters rejected in 1982 by a 62.7% majority…[]…Big Ag on the southwest side of the San Joaquin Valley get about 70 percent of Delta water, which mostly goes to grow water intensive almonds and pistachios on unsustainable desert soils for lucrative overseas exports.”

Out of the backlash – as well as to address concerns from federal regulators that the Plan violated the Clean Water Act and other federal laws – Governor Brown announced California WaterFix and California EcoRestore last April. According to a press release from the Governor’s Office: “The revised plan substantially improves the health of California’s fisheries, increases water reliability and addresses the uncertainty of climate change. Specifically, the plan will accelerate long-stalled Delta environmental projects, including critical habitat, wetlands and floodplain restoration, while fixing California’s aging and environmentally damaging water infrastructure system.”

Maven’s Notebook – a website that focuses on California Water – has said: “[t]he project is a trimmed-down version of its predecessor, the Bay Delta Conservation Plan (or BDCP), which has been in the planning stages since 2006. Administration officials assert that the project is needed to shore up the water supplies that are critical for the state’s economy, and that the new infrastructure will benefit the Delta’s ailing ecosystem and native species by utilizing state-of-the-art technology and allowing for more natural flow patterns. Delta advocates insist the Plan is too expensive and say that the new facilities will deprive the estuary of needed freshwater flows that will only hasten the collapse of the Delta’s ecosystem and native fish populations.”

But to many, this change of approach will only intensify the opposition as this plan reduces wetland and wildlife restoration from 100,000 acres to 30,000 acres according to the Sacramento Bee, and still includes the tunnels. The projected cost is about $300 million, a tiny fraction of the $8 billion originally planned.

The Sacramento Bee reported on April 30, 2015: “Brown said Thursday that the original restoration plan was only an “idea.” He said the state did not have the money to restore 100,000 acres, but that with money from a voter-approved water bond and other sources, restoring 30,000 acres can be done.”

Public comment on California Water Fix ended on October 30, 2015. One commentator was Congressman John Garamendi (D-Fairfield, CA) who said the massive twin tunnels are falsely called the “California WaterFix,” and titled the comment “The ‘Little Sip, Big Gulp’ Proposal,” which reads in part:

“The new draft [of California WaterFix] does not consider the full range of alternatives available to meet the legally required coequal goals of water supply and ecosystem restoration in the Delta…The divorce of California Eco Restore from the conveyance facility only reinforces the fact that this project is not about protecting the environment, but rather about building a plumbing system that will harm the Delta and San Francisco Bay without creating a drop of new water.”

According to the California Water Fix website, “comments and responses will be published when the environmental analyses are finalized under the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA), which is expected in spring 2016.”

California High-Speed Rail Or A Slow Train To Nowhere?

In 2008, California voters barely approved $9.95 billion in bond funding for an 800-mile high-speed train network under Proposition 1A. The Argument in Favor of Prop 1A on the ballot stated:

Proposition 1A will bring Californians a safe, convenient, affordable, and reliable alternative to soaring gasoline prices, freeway congestion, rising airfares, plummeting airline service, and fewer flights available.

It will reduce California’s dependence on foreign oil and reduce greenhouse gases that cause global warming.

[It]…will relieve 70 million passenger trips a year that now clog California’s highways and airports—WITHOUT RAISING TAXES.

Proposition 1A will save time and money. Travel from Los Angeles to San Francisco in about 2½ hours for about $50 a person. With gasoline prices today, a driver of a 20-miles-per-gallon car would spend about $87 and six hours on such a trip.

In retrospect, the time and cost arguments in favor of the high-speed train network are unrealistic. Take, for instance, the cost of about $50 a person. Amtrak fares from Oakland to Los Angeles currently range from $50 to $107 for a trip that takes about twelve hours on a system using old train technology. Moreover, according to the High Speed Rail Authority (HSRA) website, the system currently has 12 stations list but up to 24 possible.

The Los Angeles Times wrote an article on May 11, 2015 that stated: “Louis Thompson, chairman of a state-created review panel for the bullet train project, said California’s projected fares are low by world standards. Thompson’s panel is pressing the state to clarify how fares and other key business decisions will be made in the future.” The article reviewed “bullet” train prices in other areas of the country and overseas and found the HSRA’s projected fare of about 20 cents per mile are somewhere around 50% less than other operations, which are running up to 50 cents per mile.

The article continued to say: “The train will lose money and require a subsidy,” said Joseph Vranich, former president of the national High-Speed Rail Association. “I have not seen a single number that has come out of the California high-speed rail organization that is credible. As a high-speed rail advocate, I am steamed.”

In another article appearing March 27, 2014 in the Los Angeles Times: “Regularly scheduled service on California’s bullet train system will not meet anticipated trip times of two hours and 40 minutes between Los Angeles and San Francisco, and are likely to take nearly a half-hour longer, a state Senate committee was told Thursday.”

On December 9, 2014, the Sacramento Business Times ran a story reviewing the obstacles faced by the High Speed Rail Authority, including land acquisition, train contracts, cap-and-trade funding, lawsuits, and the route through the Tehachapis to Palmdale, which has been described as a “difficult, complex engineering problem” by a peer review group.

The lawsuit could turn out badly for High Speed Rail Authority (HSRA). The HSRA has already beat back one challenge but this one remains. According to the lawsuit, the HSRA plan does not live up to Prop 1A’s billing because there is no way the train will be able to zip passengers from San Francisco to Los Angeles in just more than two and a half hours. According to a Fresno Bee article on August 3, 2015: “The Central Valley residents bringing suit say the advertised travel time is impossible given the mountainous terrain and the fact that the system includes up to 24 stations.” The case is set for trial on February 11, 2016.

The project was billed as affordable but the cost has more than doubled to $68 billion and it is inevitable that taxpayers will end up footing the bill. According to an article on November 22, 2015 in the Sacramento Bee, “outside experts estimate the final cost could be $93 billion.”

Despite the challenges, construction of Phase One of the project has already started and was widely mocked as the “train to nowhere.” “CP 1” as it is known is a 29-mile stretch between Madera County and Fresno County and is expected to wrap up 2017. The CP 1 design-build contract was awarded to Tutor-Perini/Zachry/Parsons (TPZP), a Joint Venture.

Nobody has a clear understanding when the system will be complete and fully operational between San Francisco and Los Angeles. The most optimistic estimate seems to be 2029.

This article is part of the Haight Brown & Bonesteel “Top Ten Stories in California Construction Law” Series.

Source: http://www.jdsupra.com/legalnews/public-projects-in-turmoil-the-saga-of-51110/