Part 2 in a series written by Brawley farmer and water court case authority, Rusty Jordan. The series was written in relation to the Michael Abatti v IID case.
In order to get Congressional approval of the Central Arizona Project (CAP), Arizona agreed to have its non-Present Perfected Right water come after California’s. Thus, a large part of Arizona’s 2.8 million-acre feet (m a/f) would be lost before California would suffer cutbacks.
An interesting aside is, while not counted in the flow of main Colorado River, the Salt and Verde Rivers of Arizona are considered part of the Colorado and thus could have their deliveries reduced to meet the Mexican Treaty obligations in case of a cut back. The combined river yield for Arizona’s Salt and Verde rivers is about 1 m a/f. A 15 percent cut in deliveries would mean a reduction of over 100,000 a/f from these rivers. I’m sure this is another court battle. Water law is a great career choice.
In California, the efforts to move water from the old agricultural users along the river to the cities began in the 1980s. Some argue it began with court arguments in Arizona vs California 1963. The Metropolitan Water District (MWD) comments about the quality of the IID’s water rights should be read. In what seemed unrelated in the 1980s, John Elmore sued IID for wasting water and causing the Salton Sea to raise and thus flood his land. He prevailed in a decision written by now Appellate Judge Robie in Decision 1600 at the California State Water Resources Control Board. His lawyer was David Oasis. This brought about a transfer of about 110,000 a/f to MWD for 35 years beginning around 1990. To get this water, MWD paid, and pays, for conservation measures. Even with this transfer the Salton Sea continued to rise.
Between the MWD conserved transfer and the QSA transfer
The attorneys for IID, John Carter and David Oasis, also worked for the Bass Brothers who purchased 40,000 acres in the Imperial Valley. The Bass Brothers wanted to directly transfer water out of the Valley. IID wanted to control the transfer out of the Valley. The Bass brothers wanted something the opposite of the IID — individual rights vs collective rights. How these attorneys were representing both positions is baffling.
At IID, after experiencing the MWD transfer, they realized more water could be conserved and the money from that conservation could fund building and improving the infrastructure of the IID and producing monies to conserving landowners. Over the same period of time, the realization occurred that the lowered flow from the Colorado River and environmental issues in the San Joaquin River Delta were reducing California’s urban and agricultural water supply.
This created Southern California cities’ demand for water from the Colorado. Conserved water in part could be used to replace water lost to Arizona in US Supreme Court decision Arizona vs. California in 1963. In Arizona vs California, the Supreme Court allocated water and gave priority dates and decided that the Salt and Verde rivers, while part of the Colorado River, were not to be considered in the 7.5 m a/f allocated to the southern river states.
Of particular interest to Imperial Valley are the water priority dates of Indian Reservations. These correspond to their formation dates. Many of the watered Reservations have formation dates that came after IID’s 1903 date. Some of the Reservations had areas added to them and by the reasoning of the Court these areas would have later water dates. While the Central Arizona Reservations water priority date has not been litigated, they could be either a formation date or have a priority date of the delivery of water in the CAP Canal.
The construction of the Central Arizona Project created the mechanism for Arizona to use its full river entitlement. California had a right to 4.4 m a/f but had been taking 5.2 m a/f. MWD was going to have to cut back 400,000 a/f, IID needed to conserve or fallow 110,000 a/f, and PVID 140,000 a/f.
The loss by MWD in itself was not pivotal, but combined with the Delta issues, it made keeping the coastal transmission of Colorado River water critical. One only has to drive up Interstate 5 to see mile-after-mile of abandoned orchards to understand the gravity of the shortage. Los Angeles Water and Power at the turn of the 20th century exposed the morality of cities getting water — there was none. MWD sprang from the same cloth and have a similar outlook as its predecessor, Los Angeles Water and Power. Get the water you need! Make deals, live up to your word until you don’t. MWD, when making a transfer deal with Palo Verde, promised to never buy land in the PVID district. Recently they bought 20 percent of the district.
“It was too good a deal to pass up,” and “No one will miss Blythe,” were two quotes overheard at the vote to buy land.
In both the QSA and Abatti case, a conflict of interest issue exists. That is nothing you can do under appeals court rules if you want unbiased judges to hear a case. IID’s water affects the Colorado River, the State Water Project, San Diego, Los Angeles, Orange County, the Central Valley, Sacramento, and San Francisco. To have Judges where the water they drink would not be affected would require Court to be in Eureka or Modoc.
Next week: the QSA.