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Water Transfers, Canal Lining Project Advance With Rulings

Two recent court decisions have helped clear the way for the largest water transfer ever contemplated in the United States: 300,000 acre-feet of water from the Imperial Irrigation District to San Diego, Los Angeles and the Coachella Valley. 

In a federal court lawsuit, the Ninth U.S. Circuit Court of Appeals ruled that the Tax Relief and Health Care Act of 2006 exempted a water canal improvement project from federal environmental laws. The lining project is necessary to preserve water that would be transferred to San Diego.

In state court, the Third District Court of Appeal threw out on technical grounds a suit filed by Imperial County that contended the environmental impact report for the water transfers was inadequate. The court determined that Imperial County did not name two "indispensable parties" when it filed the lawsuit.

The federal court litigation over environmental issues turned on the 274-page omnibus tax bill passed in December 2006 by a lame-duck Congress. The bill contained a "rider" that requires the secretary of interior to carry out "without delay" the lining of the All American Canal "notwithstanding any other provision of law." The canal carries water from the Colorado River to the Imperial Valley.

According to the Ninth Circuit, the budget act made moot the legal challenges filed by environmentalists and Mexican nationals based on the National Environmental Policy Act (NEPA), the Endangered Species Act, the Migratory Bird Treaty Act and the San Luis Rey Indian Water Rights Settlement Act. Project opponents contend that lining the canal with concrete will destroy habitat and farms that are sustained by seepage from the earthen canal.

"If Congress had intended for the lining project to proceed under the usual course of administrative proceedings, it would have been unnecessary for Congress to act at all," Circuit Court Judge Sidney Thomas wrote for the unanimous three-judge panel. "The environmental challenges would have been resolved in due course. However, proceeding along the usual course of resolving environmental disputes would be inconsistent with the Bureau of Reclamation proceeding ‘without delay' ‘upon the enactment of this Act.'"

The lining project involves replacing 23 miles of earthen canal with a concrete-lined channel. Lining that portion of the 82-mile-long canal would prevent about 67,000 acre-feet of water (enough to serve about 140,000 housing units) from seeping away into the ground. That amount of water would then be transferred from the Imperial Irrigation District to San Diego County, which is funding the project. The $300 million lining project and the water transfer are part of a larger 2003 Colorado River agreement involving numerous states, water purveyors and the federal government.

The litigation decided by the Ninth Circuit was filed by a Mexican community group, two environmental organizations and the City of Calexico against the United States. Numerous water agencies intervened as defendants. The Mexican group, the environmental groups and Calexico argued that the project's environmental impact statement was inadequate under NEPA. The environmental groups also contended that other environmental laws were being violated. All of the plaintiffs complained that the lining project would dry up groundwater sources that serve farms and wetlands south of the border.

The government argued that the 2006 budget act made the environmental claims moot, and that the court had no jurisdiction over the other claims. The Ninth Circuit agreed. If the court upheld the environmental claims, it would delay commencement of the lining project — in violation of the 2006 budget act, the court ruled.

The plaintiffs argued that the act itself is unconstitutional because it requires action by the state, dictates the outcome of a pending judicial case and denies Latinos fundamental rights. The court, however, quickly dismissed those arguments.

The court said that due process and takings claims filed by the Mexican group should be directed to the Court of Federal Claims. Other arguments seeking to block the project are barred by the federal government's sovereign immunity, the Ninth Circuit concluded.

In state court, Imperial County attempted to argue that the annual transfer of 200,000 acre-feet of water to San Diego County Water Authority and 100,000 acre-feet to Metropolitan Water District of Southern California and Coachella Valley Water District would have impacts not adequately addressed in an environmental impact report. The county contends the transfers would harm the local economy and environment.

Sacramento County Superior Court Judge Roland Candee threw out the suit because the county initially failed to name the Met and the Coachella district. The original lawsuit named only the State Water Resources Control Board, the Imperial Irrigation District and the San Diego agency. On appeal, the county made numerous arguments as to why the lawsuit should go forward and why the Met and the Coachella district were not named in the suit until after the California Environmental Quality Act statute of limitations had passed. The Third District, however, upheld the lower court.

The court determined that the Met and the Coachella district have "differing and possibly conflicting interests" from the other parties in the lawsuit and, therefore, the Met's and Coachella's interests may not be adequately represented. In addition, Imperial County may press its claims in other state litigation over the water transfer, ruled the court, which rejected the county's reasons for failing to name the entities in the first place.

Additional litigation is pending in Sacramento County Superior Court and in federal court. 

Federal Case:
Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, No. 06-16345, 07 C.D.O.S. 3658. Filed April 7, 2007.
Some of the Lawyers:
For Consejo de Desarrollo: Gaylord Smith, Lewis, Brisbord, Bisgaard & Smith, (619) 233-1006.
For Desert Citizens Against Pollution: Gideon Kracov, (213) 629-2071.
For the San Diego County Water Authority: Daniel Hentschke, (858) 522-6791.

State Case:
County of Imperial v. Superior Court, No. C048984, 07 C.D.O.S. 6883, 2007 DJDAR 8843. Filed June 14, 2007.
Some of the Lawyers:
For the county: Antonio Rossmann, Rossmann & Moore, (415) 861-1401.
For the state Water Resources Control Board: Matthew Goldman, attorney general's office, (916) 324-4223.
For Imperial Irrigation District: David Osias, Allen, Matkins, Leck, Gamble & Mallory, (619) 233-1155.

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