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Wednesday, September 5, 2007

Legal War Over Colorado River Water

Canal-lining project knee deep in limbo
By Gig Conaughton, North County Times
February 5, 2007

SAN DIEGO ----Water officials say a new canal-lining plan will deliver enough water to San Diego County to sustain more than 135,000 households every year for more than a century.

Congress passed a law in December saying the plan should go forward without delay, despite objections from Mexican farmers and California environmental groups who say it could kill Mexicali farming and wetlands.

Yet the long-discussed $353.6 million project, which would line parts of Imperial Valley's All-American Canal with concrete, remains in legal limbo, halted by a federal appeals court order. The 82-mile canal runs from northeast of Yuma, Ariz., down along the U.S.-Mexico border into Imperial County east of San Diego, delivering water from the Colorado River to the desert.

San Diego County Water Authority officials said the cost of lining the canal continues to rise because of the delays, and that the earliest the project could start bringing water to the county would be spring 2009.

"We were hoping to start (construction) in August ... this pretty much delays us about a year in the timeline," said Halla Razak, the authority's water resources manager.

Dan Hentschke, the water authority's top lawyer, said last week that the latest legal argument revolves around whether the law that Congress passed in December should override an injunction the U.S. Ninth Court of Appeals slapped on the project in August.

Hentschke said attorneys for the United States Bureau of Reclamation and environmental opponents have each submitted their arguments, but the court has not given any timetable for when it would hear the issue.

Razak said that the water agency's hope is that the court will hear the issue in March."We think we might be hearing from the court sometime in March, and we're hoping that we'll be able to restart the process (and begin construction) by June," Razak said.

However, Robert Gaylord Smith, the attorney representing the environmental and Mexicali farmers' interests that want to kill the project, said by e-mail last week that they believe the courts will side with the environmentalists.

"I think (our chances) are very good," Smith wrote, "but it's up to the courts to decide."The canal-lining project, which has been discussed for nearly 20 years, would build a concrete-lined replacement for a 23-mile stretch of the Imperial Valley's earth-lined All-American Canal.

The project would conserve water by preventing it from seeping through the canal bed. The canal doesn't directly deliver water to San Diego. But the conserved water would be shipped via Metropolitan Water District of Southern California pipelines to San Diego County residents for 110 years.

Water officials have been discussing the canal-lining plan since the 1990s.In 2003, it became part of a complex series of agreements among San Diego County, Imperial Valley, Coachella Valley, the Metropolitan Water District, the state of California, six other Western states and the federal Bureau of Reclamation. Those deals were designed to get California to cut its take of water from the Colorado River to give the other growing Western states a larger share.But the project was derailed late last year by a challenge filed by an unusual coalition of Mexican business interests and California environmental groups.

Those groups said that water seeping through the bottom of the canal has sustained groundwater supplies for Mexicali farmers, wetlands and endangered animals for decades. Lining the canal, they argued, would steal that water and potentially kill those animals, wetlands and farms.

A Superior court judge ruled against the groups twice in 2006.But in August, to the surprise of federal, state and regional water officials and even the canal-lining project's environmental foes, the U.S. Ninth Circuit Court of Appeals overruled the Superior Court and banned further work on the project until it could hear the issue again.

Then in December, Congress passed an omnibus bill containing several proposed laws. The legislation includes a portion pushed by the water authority that reaffirms Congress' support of the canal-lining plan and orders the project carried out "without delay."The bill also states that Congress, not the courts, have sole authority to deal with international treaties and whether water seeping out of the All-American Canal belongs to Mexico or the United States.

The Bureau of Reclamation and water agencies have submitted arguments to the Ninth Court that the injunction stopping the canal-lining project should now be moot.Smith and the environmental groups have filed papers arguing that the courts, not Congress, should decide the issue.Razak, meanwhile, said the canal-lining project's costs are rising because of the delay.

Just recently, she said, water agencies completed negotiating a deal to pay the company that is waiting to construct one portion of the lining project an additional $7.5 million just to cover the cost of waiting.

Razak said water agencies are still negotiating with a second company that is waiting to build another portion of the stalled project.In addition, Razak said, the costs of such materials as concrete are expected to increase as the delay continues.

The cost of the canal-lining project was $353.6 million. However, the water authority and San Diego County ratepayers are only paying $251 million. Because of the importance of the project, the state is paying the rest.Water officials, meanwhile, say that even with the delays and increases, the canal-lining project is more than worth it.

In April, Razak said the cost of water coming from a lined canal, averaged over 110 years, would be about $20 per acre foot, far cheaper than the $502 to $598 the water authority now pays the Metropolitan Water District for imported water. An acre foot of water is 325,900 gallons, enough to sustain two households for a year.

Razak said last week that the delays have been frustrating."We would have been smack in the middle of construction," she said. "But I am hopeful that we'll be able to proceed soon. We're trying to make sure that we have enough water to meet the needs of the region. This is a good resource to do that. We're just waiting for it to happen."

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