Desert County Can’t Sue|Uncle Sam for Water

SAN DIEGO (CN) - Imperial County cannot challenge the federal government's distribution of water from the Colorado River because it lacks standing to sue, a federal judge ruled.

Imperial County and its Air Pollution Control District claimed that the Department of the Interior and the Bureau of Reclamation violated the National Environmental Policy Act and the Clean Air Act by approving the Colorado River Water Delivery Agreement.

The county asked the court reverse the Secretary of Interior's approval of the agreement and to order all water deliveries stopped.

In his 21-page order, U.S. District Judge Anthony Battaglia included a brief analysis of NEPA and a short history of how Colorado River water had been distributed in the past.

NEPA, the federal version of California's Environmental Quality Act, requires federal agencies to analyze the impact a proposed project may have on the environment. Agencies must issue environmental impact statements to ensure that the research is thorough, and offer it to the public for comments.

Seven states and Mexico each get a certain amount of water from the Colorado River, quantities that were set in place by laws made almost a century ago. The Secretary of the Interior is responsible for ensuring that all parties get their allotted water, and has the power to decide when states can get more than their lawful share.

Battaglia noted that California formerly was able to exceed its portion of 4.4 million-acre-feet per year because Arizona and Nevada did not use their maximum allotments. The threat of water shortages grew with population, threatening California's ability to use more than its legal share.

Disputes between water districts flared up, and many accused the Imperial Irrigation Distinct of using wasteful irrigation practices. The Quantification Settlement Agreement, approved in 2003, settled the disputes by forcing the IID to conserve water and to transfer conserved water to the other districts when needed.

Since the Secretary of the Interior had to approve the agreement between, the Colorado River Water Delivery Agreement (CRDWA) replaced the original agreement.

Imperial County claims that the original agreement and the CRDWA would interfere with efforts to restore the Salton Sea, an artificial lake saltier than the Pacific Ocean that is drying up.

But Battaglia wrote that the legal standards guiding judicial review of federal agencies' actions in NEPA cases are limited to determining whether the Environmental Impact Statement is adequate.

"The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious," Battaglia wrote, citing Baltimore Gas & Electric Co. v. Natural Resources Defense Council.

Battaglia dismissed Imperial County's request for summary judgment for lack the legal standing to sue the federal government.

One of the three methods that state and local governments can use to gain standing is by acting on behalf of their population's interests, the parens patriae doctrine.

"However, in lawsuits against the federal government, a state does not have standing to protect quasi-sovereign parens patriae interests because [...] the United States, and not the state, is presumed to represent the interests of the citizens as parens patriae," Battaglia wrote.

"The Court therefore concludes that plaintiffs have failed to establish their standing because the injuries they allege do not form a basis to sue the federal government." Battaglia granted Uncle Sam's cross motion for summary judgment.

Battaglia dismissed all five of the plaintiffs' claims that the environmental impact statements issued in support of the CRWDA project violated NEPA: "(1) improper segmentation, tiering, and incorporation by reference; (2) post-EIS project changes; (3) disclosure of Salton Sea impacts; (4) analysis of growth-inducing impacts; and (5) adequacy of mitigation."

Battaglia found that the plaintiffs' arguments failed on all five counts. "The Court is not convinced."

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