Court ruling may undermine pact on Colorado River


Issue Date: December 23, 2009
Kate Campbell

A court case threatens the hard-won 2003 agreement over how to divide water from the Colorado River among the seven states that count on the river for water supplies. At issue in Sacramento County Superior Court is whether the contract contains an unconstitutional "blank check" for the state that obligates it to cover restoration costs for the Salton Sea.

Under the historic Quantification Settlement Agreement, a compact that includes 13 separate contracts, California agreed to live within its 4.4 million acre-foot water right to the Colorado River, and the Imperial Irrigation District agreed that farmers would fallow some land and transfer farm water to the San Diego County Water Authority for urban uses, the largest such water transfer in U.S. history.

A number of lawsuits filed by one group of Imperial Valley farmers, by local government agencies and by environmentalists were combined into a single case. That case now addresses all of the claims in the lawsuits and seeks to validate the QSA contracts.

But the contract dispute threatens to overturn the entire, landmark pact and throw water supply issues and law into disarray. Southern California water experts, however, said issues related to restoring the Salton Sea should be easy to sort out and rectify.

Sacramento County Superior Court Judge Roland Candee said the flaw in the agreement could affect the California provisions of the multi-state agreement only, and left room for the possibility that the entire settlement agreement won't be scrapped. His tentative ruling also noted that the agreement that addresses the Salton Sea was negotiated under extreme pressure and hurriedly completed.

During a court hearing last week in Sacramento, Candee heard arguments from lawyers representing California water districts but did not issue a final ruling as had been expected. The judge did not indicate when he will issue a final ruling.

Candee's tentative ruling focuses on the agreement's commitment to restore the Salton Sea and notes what he determined to be "an unconditional contractual obligation" of the state that violates a constitutional limit.

The tentative ruling, however, appears to support the Imperial Irrigation District's right to enter into river-sharing contracts, including the water transfer, although the judge did not address that issue directly. Some farmers critical of the diversions to San Diego have challenged the district board's authority, arguing that the water is theirs and the district merely holds their rights in trust.

Imperial County supervisors also oppose the river pact. They said siphoning more farm water to cities will accelerate the collapse of the Salton Sea, which does not have its own water source and is fed from irrigation runoff from farms. The man-made lake serves as habitat for migratory birds, as well as providing recreational opportunities.

The Imperial County Farm Bureau said in a prepared statement that because it "represents all farming interests in Imperial County, we are interested in the (tentative) ruling handed down from Judge Candee. ICFB will continue to be very involved in the listening process and discussions with the IID on what remedies they may have that fulfills their responsibilities to protect, defend and strengthen the water rights they hold in trust for the landowners of Imperial County."

The Associated Press reported last week that the Schwarzenegger administration's top water advisors plan to call the various stakeholders in the water agreement together to discuss the next steps to address the court's concerns about the state's role in the Salton Sea restoration.

About $30 million has been spent since the Quantification Settlement Agreement was signed to begin Salton Sea protection plans. Attorneys for the state told the judge last week that the state meets constitutional requirements by setting aside money specifically for the sea's restoration. The $11.1 billion water bond that will go to voters in November includes $100 million for the Salton Sea.

It has taken years to get the issues related to the QSA to the trial level, and Candee noted in his tentative ruling that the "unique and complex issues presented (more than 147 written rulings on contested matters), the number of parties and cases, the sheer volume of materials to be considered (in addition to the pleadings, six administrative records that in electronic form fill more than 350 CDs), the more than two years of having the proceedings stayed while certain rulings were on appeal, and other complicating factors, all contributed to the time necessary to reach trial."

(Kate Campbell is an assistant editor of Ag Alert. She may be contacted at kcampbell@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.