Back in August of 2017, Judge L. Brooks Anderholt ruled that farmers, and not the IID, held rights to Colorado River water. The IID appealed his ruling. In April of this year, other interested parties submitted four amici or “friend-of-the-court” briefs to aid the judges. Since then, the court has been silent, as if those hundreds of pages of documents were in hibernation.
On October 28, the case came back to life when the appeals court ruled to accept all the briefs, one of which was filed on behalf of the IV Coalition for Fair Sharing of Water on the side of the IID, an organization I belong to. This set the process in motion once again.
With exquisite timing, a test case of Judge Anderholt’s ruling was on the IID agenda for their November 5 meeting. IID Directors were to vote on an amendment to a water supply contract with Heber Geothermal Company. Since 1994 Heber Geothermal has had an agreement with the IID to purchase up to 1800 acre-feet of water for their cooling system. With a change in their technology, Heber Geothermal was asking to purchase 500 more acre-feet per year.
Mr. Abatti, through his attorneys, took issue with this. The judgement that they won in Mr. Anderholt’s court stated, “Imperial Irrigation District is not empowered to enter into any new contracts committing to the provision of water to any non-domestic or non-agricultural user which guarantees the supply of water during times of shortage in a manner that is inconsistent with the court's findings herein.”
Legal language is often fine-tuned and complex, but it’s clear that according to Judge Anderholt, IID can provide new supplies of water to industries only under very strict conditions. In this case, Mr. Abatti doesn’t think those conditions have been met and wants to block the agreement. Unfortunately, Abatti doesn’t offer any advice on what kind of contract he would accept.
In his attorneys’ letter to the IID, Mr. Abatti states that if the IID were to approve this contract, he “reserve[s] the right to seek relief from the court, including seeking a ruling of contempt.” What does this mean? It appears to be a threat.
At their November 5 meeting, the IID directors did approve the agreement 4-1 without comment. Now we can see what sparks fly from Mr. Abatti’s attorneys.
Mostly what arises from this muted exchange between Mr. Abatti and the IID is a whole slew of questions and few answers.
What troubles Mr. Abatti? The IID’s agreement with Heber Geothermal specifically says that if for any reason those 500 acre-feet are not available (including shortages from numerous circumstances), the IID is not required to supply the water. There is no guarantee, and therefore no violation of Judge Anderholt’s ruling.
A representative of the Heber Geothermal related that his company has plans to build another geothermal plant near the Salton Sea. They will once again need water. But with the Abatti v. IID court case in appeals court, and now this threatening letter from Mr. Abatti, the overwhelming uncertainty of getting water precludes spending millions of dollars on the permitting process. It is a project that showcases Imperial County’s renewable wealth and provides good permanent jobs. Yet it has ground to a halt.
If this agreement, with all its off-ramps regarding water supply, doesn’t satisfy Mr. Abatti, what kind of agreement would? Does he and his fellow plaintiffs expect the IID to get a nod of approval from the audience of farmers before they entertain any new industry in the Valley? Or does Mr. Abatti and other farmers expect to be paid to conserve water before any new water agreements are approved?
Judge Anderholt ruled that farmers have a private property right, appurtenant (connected) to their land, so does this mean that the IID now must pay farmers for every drop of water supplied to a new geothermal plant?
Mr. Abatti’s letter objects that this contract gives Heber Geothermal preferential treatment, a priority over farmers. But look at the context. Farmers pay $20 for an acre-foot of water. Heber Geothermal will be paying the industrial rate of around $400 per acre foot, plus be responsible for its own wastewater.
IID’s contract with Heber Geothermal includes numerous conditions under which water deliveries will be reduced or cease. And Heber Geothermal pays twenty times the cost that farmers pay for water. How is that preferential treatment?
As the Fourth District Court of Appeal in San Diego prepares to issue its opinion on Judge Anderholt’s ruling, many parties hope for, at a minimum, answers to numerous questions about who has the power to distribute water in Imperial Valley.