Imperial County supervisors and the Imperial County Air Pollution District claim that Southern California water brokers skirted environmental laws in a frantic push to secure a hard-fought and costly deal to reduce the stateâ€™s dependency on an over-tapped Colorado River.
That 2003 landmark agreement also cleared the way for the transfer of water between Imperial Valley farmers and the San Diego County Water Authority, a deal vital to guaranteeing the region would have adequate supplies as the river allotments dropped.
The question before Judge Lloyd Connelly is whether the agreement contains sufficient safeguards and financial commitments to protect public health in the Imperial Valley and prevent the total collapse of the Salton Sea.
His answer, expected toward the end of the year, will carry economic consequences for all of Southern California in general and the San Diego region specifically.
Thatâ€™s because Connelly could go as far as tossing out the river agreement and water transfer, although he has an array of less-sweeping options. For example, he could keep the present accord intact but order new environmental studies and mitigation measures.
â€œFrom a legal standpoint, it means we start all over again,â€ Dan Hentschke, the water authorityâ€™s counsel, said in an interview.
And that is exactly what Imperial County Supervisors and the Imperial County Air Pollution Control District want.
â€œSan Diego has gotten a really good deal,â€ contends attorney Antonio Rossman, representing Imperial County. â€œBut it doesnâ€™t begin to scratch the surface of the environmental costs at the Salton Sea or to the residents of Imperial.â€
Rossman and others press a number of arguments. One of which is the eventual consequence of the transfer will be an acceleration of the Salton Seaâ€™s demise, taking with it one of the last remaining large habitats for multiple endangered and threatened migratory waterfowl.
To date, the San Diego authority has cumulatively bought a half-million acre-feet, or enough for 1 million typical homes, from the Imperial Irrigation District. The 10-year running tab has topped $344 million, which includes paying the Metropolitan Water District to deliver the supplies through its plumbing network.
Officials with the authority see that water as a hedge against future shortages and as an integral part of their strategy to develop a reliable supply independent of Metropolitan, its Los Angeles-based wholesaler.
But those deliveries could be put in jeopardy, depending on the reach of Connellyâ€™s ruling and the outcome of likely appeals. San Diegoâ€™s supplies could be squeezed, potentially driving up the price of water because Metropolitan may not always be able to cover the shortfall, particularly in times of dry weather.
With 25 attorneys packed into his courtroom, Connelly spent much of the past two days pointedly questioning all sides. There are more than 10 agencies, cities, environmental groups and private interests involved, exchanging thousands of pages of arguments and rebuttals in the court record.
â€œThereâ€™s very little in this case Iâ€™ve decided. Very little,â€ Connelly said early on.
Attorneys are not anticipating a quick ruling. Connelly is known as a thorough scholar, who has heard a number of key water cases in his career.
The case against
Imperial County and its air district make a number of claims to substantiate their arguments that the requisite environmental reviews were so flawed that they should be tossed.
Among those: There is no â€œleadâ€ agency designated, which effectively means there is no one district held accountable if the money runs out before the environmental damage is repaired. Imperial County contends it particularly protects Metropolitan from any liability. Metropolitan, the county says, is the principal beneficiary since the deal ensures its access to large amounts of river water.
Also, Imperial County and its allies say growth inducement effects were concealed, that conservation that does little harm is a better choice, changes in the project were made hurriedly without public scrutiny, that the required â€œno projectâ€ alternative and its viability was not fully assessed, and that the stateâ€™s funding commitment to offset the impacts to the Salton Sea is unenforceable and unlikely to be carried out. (As part of the transfer agreement, the San Diego water authority and other involved water agencies committed to invest $133 million in environmental safeguards.)
â€œThe recent history is if they are allowed to continue to do business as usual, nothing would change,â€ said Rossman in explaining why Imperial County wants to force a rewrite. Reworking those studies and developing new mitigation measures would give the valley agencies a greater say in how to offset the health and environmental dangers.
â€œLitigation is the one last best chance we have to force ourselves to the table,â€ Rossman said.
San Diego County Water Authority officials, along with others involved in the river negotiation, insist the environmental documentation passes legal muster.
â€œNo one was misled. No one was misinformed, No stone that needed to be turned was left unturned,. It was done right,â€ Hentschke said.
Salton Seaâ€™s future
So why is shipping water to San Diego seen as having a direct impact on the health of Imperial County residents and the Salton Sea?
The Salton Sea, a much-maligned but environmentally invaluable inland lake straddling Imperial and Riverside counties, has been growing more saline and its shores receding for some time. The sea was created by accident when Colorado River floodwaters poured into an ancient seabed after a canal burst open in heavy storms in 1905. Since then, agricultural run off has sustained the lake.
But with the idling of some farm land to free water for sale to San Diego, the decline of the Salton Sea is expected to accelerate. Currently the Imperial Irrigation District must replace that lost water, but in the coming years that requirement will end.
At the same time, as the sea recedes, more of the shoreline will be exposed. The notorious Imperial Valley winds will then blow unhealthy playa and contaminated dust throughout a region already suffering from alarming rates of childhood asthma and other respiratory illnesses.
â€œThe issues of air quality and public health are just as important to Imperial County as water is to San Diego County,â€ said Alene Taber, attorney for the Imperial County Air Pollution Control District.
Some farmers also fear that the stirred up dust could harm their crops.
The roots of the case
California had long drawn more than its share out of the Colorado River, but it wasnâ€™t until other western states began to boom that the stateâ€™s overuse became controversial. With Las Vegas, Phoenix and other major cities searching for scarce water, pressure grew on California to live within its means.
Immediately, sights were set on the Imperial Irrigation District, a national breadbasket that controls about 75 percent of the stateâ€™s 4.4 million acre-foot allotment thanks to its historic legal rights to river water. The vast majority of the remainder goes to Metropolitan.
After several years of bitter battles, the seven-state accord was signed in October 2003. It charted Californiaâ€™s path, gradually reducing its take from the river and implementing multiple programs to help ease the state into a new era of frugality.
The San Diego County Water Authorityâ€™s up to 75-year agreement with the Imperial Irrigation District is a central element in the strategy because it cleared a way to nudge the farm district to set aside some water for urban uses.
Itâ€™s generally considered to be the largest ongoing farm-to-city water transfer in the nation.
But once that water started flowing, so too did the lawsuits, including the latest before pending before Judge Connelly.
The current case is actually an extension of an ongoing fight lost by Imperial County when a state appeals court declared that a lower court erred in invalidating more than a dozen of the river pacts all linked to the water transfer and broader agreement.
But Judge Ron Robie asked Connelly to answer the question of whether the environmental laws were followed, bringing the case to where it stands today.