Judge controls fate of water pact, Salton Sea

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SACRAMENTO – A Sacramento judge’s impending ruling could dramatically impact — if not completely scuttle — the largest water deal in U.S. history, and have major ramifications for the Salton Sea’s future.

 

After a decade of litigation, rulings, appeals and remands, Sacramento County Superior Judge Lloyd Connelly heard oral arguments Nov. 13 from litigants in coordinated lawsuits stemming from the 2003 Quantification Settlement Agreement, or QSA. It was designed to help end arguments over the West’s most important, most partitioned water source, the Colorado River.

 

The agreement brought about the largest agriculture-to-urban water transfer in U.S. history, with up to 200,000 acre-feet of water a year flowing from Imperial Valley farmlands to San Diego County for 75 years. A smaller amount of water also comes to the Coachella Valley as part of the deal.

 

Connelly heard arguments from Imperial County, its air pollution control district and other parties that the state of California and water agencies, including Imperial Irrigation District and the Coachella Valley Water District, failed to follow state environmental laws in ratifying the pact. A ruling is expected from Connelly within 60 days.

 

A judge in 2009 invalidated provisions in the QSA to have the state responsible for Salton Sea mitigation beyond about $300 million required of water agencies, saying they violated California’s Constitution by potentially leaving it with open-ended Salton Sea cleanup costs. But the state’s Third District Court of Appeal reversed the ruling and remanded the case back to Superior Court, saying the state’s actions at the sea still require appropriations by the state Legislature.

 

IID General Manager Kevin Kelley said he believes the state understands it’s responsible for Salton Sea restoration, but “it’s been slow in implementing that responsibility.”

 

“And that is as much of a concern for IID and the other water agencies as it is for the parties challenging the QSA,” he said.

 

A ruling that invalidated the QSA would necessitate other transfer agreements, but would not necessarily prevent the water from moving to San Diego County, Kelley said. IID has been working on just such a “Plan B” for years, he said.

 

But an invalidated QSA might restore a condition that was one of the reasons for the deal’s implementation in the first place, Kelley said: California’s overuse of Colorado River water beyond its 4.4 million acre-feet per year allotment by the federal government. An acre-foot is enough water for about two households for a year.

 

Agriculture markets and commodity prices in the Imperial Valley have led IID to overuse its river allotment by about 170,000 acre-feet this year, Kelley said. The QSA has provisions allowing for the agency to “pay back” the river over three years.

 

“That inadvertent overrun payback policy is part and parcel to the QSA,” he said. “So if transfers went away, so would the payback provisions.”

 

Because the Colorado’s allotment was established based on historical use, IID has vastly larger river rights than thirsty states such as Nevada and Arizona. But Kelley said he doesn’t expect a possibly invalidated QSA to lead to a water-grab attempt.

 

“We obviously would be opposed to any deviation from the established priority system,” he said. “Ninety-seven percent of the water here is used for growing food and fiber.”

 

Attorney Malissa Hathaway McKeith was among those providing oral arguments in Sacramento. She represents Cuatro Del Mar, a citrus and palm tree ranch on the shores of the Salton Sea.

 

“When the Salton Sea dies, they’re going to lose their investment right away” if nothing is done, McKeith said.

 

McKeith said it’s unclear how an invalidated QSA or requirements of new, more comprehensive environmental studies would impact parties.

 

“That’s the key question: How do you unring the bell on the QSA in a way that does not completely rewrite the last decade of people on the Colorado River relying on the QSA?” she said.

 

McKeith said she does not believe water transfers should continue until “a comprehensive plan to restore the Salton Sea is in place.”

 

“Otherwise the Coachella Valley will be the first to suffer,” she said.

 

The water transfer’s full implementation by 2018 will starve the sea of its primary water source, agricultural runoff. Its already expanding shores would grow by hundreds of square miles, decimating fish and bird habitats and sending dust clouds throughout the Coachella and Imperial valleys.

 

“As tourists are impacted and investors don’t want to invest in the area, it will start directly impacting your economy,” McKeith said.

 

People will ask, ‘Was that cheaper water worth it, and why didn’t the water agencies insist that the state do restoration of the Salton Sea?’”

 

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