Desert water Agencies Appeal Judge’s Ruling on Tribal Claims

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By PAUL J. YOUNG

An inland water agency is asking an appeals court to determine the validity of a federal judge’s ruling that the Palm Springs-based Agua Caliente Band of Cahuilla Indians has an ownership stake in groundwater supplies on which Coachella Valley residents and businesses depend.

“To protect the public’s access to an affordable and reliable water supply and prevent unnecessary rate hikes, the Desert Water Agency will remain vigilant in our efforts to appeal this ruling,” said DWA General Manager David Luker. “The public has always — and should always — own, cooperatively manage and share the region’s water supply.”

The DWA on Monday filed a petition with the U.S. Ninth Circuit Court of Appeals asking it to scrutinize and decide whether a finding by U.S. District Judge Jesus Bernal should stand. The Riverside-based judge ruled earlier this month that the Agua Caliente have a rightful claim to the groundwater aquifer used by the DWA and the Coachella Valley Water District.

The decision stems from a May 2013 lawsuit challenging the utilities’ exclusive control of groundwater supplies.

“This decision validates the tribe’s diligent work to protect and preserve one of the valley’s most important natural resources,” said Agua Caliente Tribal Chairman Jeff Grubbe.

The tribe contends that the groundwater basin is suffering from over- drafting, or depletion, due to unsustainable rates of use. The plaintiffs also argue that water quality is impaired by large-volume imports of Colorado River supplies, which are required to keep the local water table at a healthy level.

“These practices are not acceptable for long-term health and viability of the Coachella Valley water supply,” Grubbe said. “We called out this detrimental practice and brought it to the attention of the water districts over and over for years, simply to be ignored.”

The DWA and CVWD counter that they have been “responsible stewards” of the aquifer, pointing out that Colorado River imports are vital to recharge the groundwater basin, which serves eastern Riverside County residents. The agencies assert that — in contrast to the tribe’s claims — Colorado River supplies are naturally filtered before they reach the Coachella Valley and are not substandard in quality.

The Metropolitan Water District of Southern California, which distributes water to agencies throughout the region, imports roughly a third of its total reserve from the Colorado River.

“Groundwater management is of critical importance to our state’s water future, and recent reports show that our efforts here in the Coachella Valley are paying off,” said Luker. “Desert Water Agency and the Coachella Valley Water District have a highly successful replenishment program, and our long- term effort to sustain the groundwater basin is a model for other agencies nationwide.”

According to the defendants, the Agua Caliente suit threatens an “expensive. lengthy and complicated legal process” that could ultimately result in water resources being governed by the tribe.

“The tribe has refused to disclose how it intends to use the water if it does take ownership of the public’s water supply,” Luker said. “With no pipes, pumps, infrastructure or expertise in water management, it only makes sense that the tribe intends to become Coachella Valley’s water broker by selling the water back to the public for a price it would determine … driving up rates for local residents and businesses.”

The tribe’s lawsuit has a three-stage decision-making process, according to the framework outlined in Bernal’s 14-page ruling. The first stage was addressed in the judge’s opinion that the Agua Caliente have a stake — and therefore a controlling interest — in the groundwater basin.

If the second stage is reached, it will examine how much physical “pore space” exists under the reservation and whether the stored water should have a certain quality. The third stage, Bernal said, would entail a “fact- intensive” effort to resolve the extent of the tribe’s controlling interest.

The judge relied on a modern interpretation of a 1908 federal case — Winters v. United States — in determining that the tribe has “reserved water rights” that are not limited to surface water sources, as the defendants insisted.

“Federal law, at least by implication, treats surface water and groundwater similarly,” Bernal wrote, adding that “groundwater provides an appurtenant water source.”