In the January 12, I.V. Press, Mike Abatti writes to combat what he calls the misrepresentation of Judge Brooks Anderholt’s 2017 ruling regarding water rights in the Imperial Valley.
Mr. Abatti has recently filed a contempt of court charge against the IID for signing a contract to provide up to 500 acre-feet of water to Heber Geothermal Company. His attorneys say that the IID violates Judge Anderholt’s ruling. His lawsuit effectively blocks any new geothermal plant—or any new water user—from the Imperial Valley.
To be sure I don’t misrepresent the ruling, here are Judge Anderholt’s key words: “[The] District cannot take perfected water rights from the present owner of the lands to which they are appurtenant and transfer those rights or the appurtenances to other beneficiaries without appropriate consideration.”
In plain language, this means the agricultural landowners have rights to ALL the water in the Imperial Valley (except for a small amount for drinking and washing). If the IID wants to deliver water to a new user, they must pay the landowners.
Judge Anderholt goes on, “Imperial Irrigation District is not empowered to enter into any new contracts committing to theprovision 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.”
In plain language, if you’re not a farmer or a city that needs more drinking water, you can’t get a guaranteed supply of water—unless the agricultural landowners are willing to sell it. This ruling takes away the power of the IID’s elected board to equitably distribute water and hands it to landowners.
When Mr. Abatti says he simply wants the IID to use conserved water for any new development in the Valley, the big fact that he’s leaving out is that Judge Anderholt’s ruling means that a landowner must be paid to get that water.
Mr. Abatti says that the IID has already conserved 500,000 acre-feet of water for transfer outside the Imperial Valley, so it should be able to conserve 500 acre-feet more for the geothermal plant. He omits to mention that the IID has already conserved that 500 acre-feet (actually quite a lot more than that)—both by updating its distribution system and by voluntarily paying landowners/farmers to conserve.
It wouldn’t be good management on IID’s part to calculate conservation at exactly 500,000 acre-feet. Prudence suggests conserving more. And so the IID has. In 2018 it held an extra 170,000 acre-feet in verified storage.
Mr. Abatti’s requirement that only conserved water be used has already been met.
Remember that when we talk about 500 acre-feet of water, we’re talking about .00019 of all the water.
Notice also that Judge Anderholt’s ruling prevents a new contract in times of water shortage. We’re not in a shortage. Judge Anderholt’s ruling says that the contract cannot guarantee a supply of water. It doesn’t. The contract includes many conditions for reducing the supply of water. So the contract with Heber Geothermal is not barred.
Because it’s such a small amount of water, relatively speaking, and because the conditions for preventing the contract haven’t been met, we get a clue that there’s something much larger at stake here. And that’s who controls the water.
The Anderholt court ruling has handed agricultural landowners a huge gift. They (or their tenant farmers) must be paid for conserved water—perhaps even the water the IID itself has already conserved. And to the IID, the ruling has dealt a crushing blow. At a recent meeting of the IID Water Conservation Advisory Board, local farmer Mark McBroom lambastes the IID for appealing Judge Anderholt’s ruling. Well, it’s just fighting to retain the authority it exercised for 100 years.
The I.V Coalition for Fair Sharing of Water believes that the Anderholt court’s 2017 ruling is incorrect. We agree that farmers should not be hurt when new water deals are made. But we also recognize that the IID and its elected board are there to represent all water users in the Valley.
We have submitted a detailed argument to the Fourth District Court of Appeals in San Diego explaining how the IID holds water rights in trust for all water users. Mr. Abatti and others claim that the water, ALL the water, is appurtenant to the agricultural land. The court will soon decide that issue.
We need development in the Imperial Valley. The geothermal industry has a forty-year history of being good stewards of the land and the water it uses. It provides jobs and pays taxes just like landowners do. The water is already available, and the IID is right in approving its use.