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Water conservation project hits snag


All-American Canal lining halted by court injunction
By Sandra Dibble
STAFF WRITER
and Michael Gardner
COPLEY NEWS SERVICE



August 26, 2006

In a move that could jeopardize a vast new water supply for San Diego County, a federal court has blocked construction of a key water conservation project near the Mexican border.

The Ninth Circuit Court of Appeals in San Francisco has issued an emergency injunction halting the lining of the All-American Canal in Imperial County until a three-judge panel can hear the case.

Mexican farmers could benefit from the ruling if it were upheld in a hearing as soon as Dec. 4, because for decades they have irrigated their crops with water that seeps from the unlined canal and percolates into an aquifer beneath the border. Environmentalists say the leaky canal also nourishes an important wetland south of the border.

The San Diego County Water Authority is financing a large share of the project in order to obtain 56,200 acre-feet of water annually out of a total of 67,700 acre-feet that would be saved by lining a porous stretch of the canal with concrete. That water would be enough to serve more than 135,000 households a year.

The All-American Canal project is also the centerpiece of a delicately crafted seven-state agreement to share Colorado River water. The federally mandated pact, which requires that California decrease its draw on the river, may have to be reconsidered if the lining does not go forward.

California has until the end of 2008 to complete the lining, said Dan Hentschke, general counsel for the San Diego County Water Authority.

If that deadline is not met, it “could ultimately lead to the unraveling of the agreement that we worked so hard to put together,” he said.

The injunction was cause for celebration in Baja California yesterday. A Mexicali business organization, the Consejo de Desarollo Económico de Mexicali, or CDEM, has been leading the legal battle against the project, together with two U.S. environmental groups.

The injunction “gives everybody a chance to consider what is actually happening here,” said Juan Ignacio Guajardo, a Mexicali attorney and member of the CDEM. “It gives everybody a chance to sit back and say, 'If there are damages, let's look at them and stop them.' ”

Across the border in Imperial County, the city of Calexico, heavily dependent on Mexicali customers, has also weighed in, saying it would suffer a drop in sales if the project moves forward.

The All-American Canal issue has been simmering for years, but it has heated up as the construction has approached reality. The canal was completed in 1940 and the water it carries is used to irrigate Imperial Valley farms.

A large amount of that flow has been lost to seepage through the canal's sandy bottom. The seepage feeds an aquifer that reaches beneath the border, allowing Mexicali farmers to draw on the water for their fields.

The lining, which is being paid for by the state of California and the San Diego County Water Authority, involves replacing an unlined 23-mile section of the canal with a parallel concrete-lined trench.

The Mexican government has long opposed the project, saying that farmers have established their right to the water by drawing on it for more than five decades. Mexico also cites a 1973 agreement that stipulates the two countries must find ways to share groundwater, and consult with each other before taking an action that affects the other side.

But years of diplomatic negotiations between the U.S. and Mexican federal officials have not prevented the project from moving forward. In July 2005, CDEM joined forces with two U.S. environmental groups, CURE and Desert Citizens Against Pollution, to file suit in U.S. federal court against the U.S. Department of Interior and the Bureau of Reclamation, which owns the canal.

The lawsuit invoked a number of water rights and environmental issues, and has been closely watched by water agencies in Nevada and Arizona. But the opponents' arguments failed to persuade Las Vegas federal Judge Philip Pro. In a series of rulings in June and July, Pro refused to block the project, and said the claims of trans-boundary impacts were “speculative.”

The opponents appealed the ruling to the Ninth Circuit, which issued this week's two-sentence ruling halting the project until a three-judge panel hears oral arguments as early as Dec. 4.

At a news conference in Mexicali yesterday, Bernardo Martínez, a top Baja California state official, said Mexico's federal government intends to file a brief in support of halting the lining project – similar to those filed by Baja California and the city of Mexicali.

Opponents of the lining said the ruling is a good sign that the court will look favorably on their petition: “It's not a guarantee that the Ninth Circuit is going to rule in our favor, but it is an extraordinarily positive sign that it believes that we have a very good case,” said Bill Snape, attorney for CURE.

The U.S. Bureau of Reclamation declined comment on the case, referring queries to the U.S. Department of Justice. A spokesman said he could not comment because of the ongoing litigation.

But closer to home, supporters of the canal project said the delay is certain to increase the project's cost. “It's disappointing, but we'll do what we have to do to protect our rights, and I'm sure the U.S. will too,” said John Carter, special water rights counsel for the Imperial Irrigation District, which operates the All-American Canal.

Jeff Kightlinger, general manager of the Los-Angeles based Metropolitan Water District and one of those who helped broker the Colorado River agreement, said California and Western states would be forced to take a hard look at water allocations and conservation programs if the canal lining project has to be abandoned.

Most importantly, California could be hard-pressed to meet deadlines set in the multistate pact to reduce its draw on the river gradually without being able to count on the water saved by lining a new stretch of the canal, Kightlinger said.

“I don't think it necessarily means it collapses,” he said of the hard-fought agreement. “The parties would sit down and figure out what we could do to accommodate this blow.”



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Sandra Dibble: (619) 293-1716; sandra.dibble@uniontrib.com