SoCal Cities Win Water Fight With Farms

SACRAMENTO (CN) – California water districts properly considered the environmental impacts of the nation’s largest farm-to-city water transfer agreement, a Superior Court judge ruled.
     Sacramento Superior Court Judge Lloyd G. Connelly last week upheld the 2003 Quantification Settlement Agreement (QSA), a collection of 12 agreements that settled disputes between California water agencies and several states about how to allocate shares of Colorado River water.
     The Colorado River, which flows 1,450 miles from its source in the Rocky Mountains through seven states until it ends as a trickle in Mexico, is a vital source of water for farmers and city-dwellers.
     The QSA agreement allows California to reduce its “historic overdependence” on Colorado River water to a 4.4 million acre-feet allotment, established 80 years ago by large-scale water transfers from agricultural areas to urban areas, according to a San Diego County Water Authority pamphlet about the QSA.
     An acre-foot is enough water to cover 1 acre 1 foot deep: 271,330 gallons. The water industry estimates that one suburban family uses 1 acre-foot of water each year, though actual use, of course, varies.
     One of the QSA’s main features calls for Imperial Valley to transfer up to 200,000 acre-feet of water a year to San Diego for the next 75 years.
     Imperial County and several co-plaintiffs sued the Imperial Irrigation District (IID) and three other water agencies that brokered the deal. The plaintiffs argued, among other things, that the Imperial Irrigation District had no authority to approve the QSA, and that the agreement’s environmental studies were inadequate under the California Environmental Quality Act (CEQA).
     In response, the IID filed a validation proceeding that “focused on [determining] the validity of its actions in approving and executing the QSA agreements.”
     California’s 3rd Court of Appeal upheld the agreement in December 2011, reversing a lower court’s finding that the water transfers were unconstitutional, according to the Imperial Valley Press.
     The appeals court remanded to Judge Connelly last year to determine if the Imperial Irrigation District had authority to approve the agreement, and whether the agreement’s environmental studies complied with CEQA.
     Connelly sided with the water agencies on June 4 and found that the QSA agreement’s environmental review adequate.
     In determining if agencies conducted proper environmental analysis under CEQA, the court must limit its scrutiny to whether the agencies supported their findings with substantial evidence in the record.
     The plaintiffs claimed the environmental impact reports did not consider a reasonable range of project alternatives, as mandated by CEQA. Among other things, the plaintiffs claimed the agencies wrongfully rejected an alternative calling for the San Diego Water Conservation Authority to reduce its demand by conserving water, enabling the agencies to meet project goals without water transfers.
     The water agencies disagreed, claiming that the all-conservation alternative was infeasible and would not supply San Diego with enough water to meet demand.
     Connelly agreed with the water agencies and found that the all-conservation alternative clashed with the project’s goals.
     He wrote that the “all-conservation alternative disregarded IID’s critical project objectives and the fundamental purpose of the project, to develop and implement a program for the transfer of conserved water in accordance with the SWRCB [State Water Resources Control Board] directive to IID. As a critical projective objective and fundamental purpose, the transfer of conserved water did not unduly narrow the range of project alternatives; instead it changed the basic nature of the project and could not be reasonably be considered as a project alternative.”
     Connelly dismissed claims that the environmental reports concealed the project’s growth-inducing impacts.
     The plaintiffs claimed that sending 200,000 acre-feet of water to San Diego each year in addition to the 300,000 acre-feet it gets from the Metropolitan Water District (MWD) would exacerbate urban growth.
     Connelly rejected this argument, saying that the plaintiffs “do not recognize that the transfer would replace, not add to, the quantity of water previously provided by MWD.”
     “By thus replacing the surplus water with high priority conserved water, the transfer would provide [San Diego] with a reliable supply of water in the same amount and to help implement the goals and objectives of the QSA program,” Connelly wrote.
     The judge said the project will use current infrastructure, which is almost at capacity and is incapable of sending more water to San Diego than the city already receives. Since the transfer deal reflects the city’s present water demands, the transfers cannot induce growth, the judge wrote.
     The plaintiffs failed to persuade Connelly that the environmental studies did not include enough mitigation measures to reduce the project’s impacts to air quality in the Salton Sea area.
     The Salton Sea is a large artificial lake in the Imperial and Riverside valleys that is rapidly shrinking.
     The water agencies developed a four-step program to reduce the impact of toxic pollutant emissions resulting from exposure of the Salton Sea’s previously underwater shoreline. The plan called for keeping people away from the shores to avoid generating dust; studying the area to gather information on contaminants; creating or buying emissions credits through local air pollution control districts; and using “feasible dust mitigation measures,” such as moistening large areas to control dust.
     The plaintiffs said this plan lacked proper analysis and did not include actual steps to reduce dust.
     Connelly disagreed. He said that restricting access to sensitive areas is a common form of mitigation; that research and consultation with air pollution authorities are common components of many mitigation measures; and that wetting large areas of exposed shoreline qualifies as a specific mitigation measure.
     Finally, Connelly upheld the IID’s authority to approve the QSA agreements.
     Imperial County claimed that the Metropolitan Water District of Southern California should have been the project’s lead agency because it receives the most water under the transfer program. It also argued that having four water districts acting as co-lead agencies violated CEQA.
     Connelly found that CEQA guidelines and precedent are ambiguous as to how many lead agencies can oversee environmental analysis.
     Despite this ambiguity, Connelly found that having four co-lead agencies for the QSA project “is well supported factually” because the agencies based their relationship on a document that, among other things, conditioned approval and funding for the QSA on completing a CEQA-compliant environmental review process.
     The four water agencies “each had a direct and substantial interest in achieving the goals and objects of the program. … No one of the agencies had overall responsibility for implementing the components; thus, by serving as co-lead agencies, they were in the best position to coordinate assessment of the environmental impacts of the QSA program components,” Connelly wrote.
     “The court concludes and declares that the evidence in the administrative record and the legal argument herein supports and demonstrates the validity of IID’s actions in entering and executing the 12 QSA agreements brought before the court for validation,” Connelly wrote.
     He denied the plaintiffs’ petitions on remand and closed the case.
     Western water law is enormously complex, based at times on intertwining laws, interstate compacts and federal policies that may be obsolete, contradictory, and based on claims that states have rights to more water than the river holds.
     Even before the baffling, century and a half of legal opinions made the subject all but inscrutable, Mark Twain wrote: “In California, whiskey is for drinking and water is for fighting.”

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