[env-trinity] Selling Trinity Water to Imperial County?

[Tom Stokely]

 http://www.ivpressonline.com/articles/2004/03/20/news/news03.txt

 <http://www.ivpressonline.com/articles/2004/03/20/news/news03.txt> Water: The marketable commodity



By MARC SCHANZ, Staff Writer

SACRAMENTO - California is so well-connected in its system of canals that water from the Trinity River could be flowing into Imperial County if someone wanted it badly enough, according to Tom Birmingham, general manager of the Westlands Water District.

"If the best economic interest can be made by transferring my water to someone else, why wouldn't I do that?" Birmingham asked when discussing fallowing in the Central Valley. WWD covers a large portion of the western Central Valley south of Fresno.

"What is wrong with making money?" Birmingham asked rhetorically.

Now that the historic Quantification Settlement Agreement is a done deal, what does that imply for the future of water transfers in California? What are the responsibilities, if any, of the sellers and buyers of water?

If anyone wanted to stop the litigation spawned from the Golden State's water wars in its tracks, they could have done it by rounding up all the usual suspects at the Clarion Hotel in Sacramento on Friday at the "California Water Marketing" seminar put on by the Washington-based Seminar Group and trade journal Water Strategist.

A virtual who's who of players in the QSA and state water law turned out to examine where the future of water in California was headed, especially after the historic transfer between the Imperial Irrigation District and the San Diego County Water Authority was approved in October 2003.

Representatives from the legal teams of SDCWA, IID, the Metropolitan Water District and other state water agencies all were in attendance.

Moderator Rodney Smith, the editor of Water Strategist and an IID economist, said "the Berlin Wall has fallen in California" when talking about the emerging water market.

Water is coming into its own as a market in this state, but certain things have to happen for that to be encouraged, Smith said.

The state's traditional water supplies - the Colorado River, the State Water Project and groundwater - all are dwindling, Smith said.

"We need to have an institutional framework for decision-making and a clear definition of property rights," Smith added.

The arrival of an open water market will challenge the old structures of the water industry, Smith added, and development pressures will become more acute and less tolerant of delays through litigation.

Between seminars dealing with weighty topics such as property rights, water markets, land-use planning and water supply to new development, water lawyer jokes were the order of the day.

"I flunked out of law school and I'm the one who wrote the laws," joked former state Assemblyman and current member of the State Water Resources Control Board Richard Katz, to the room full of lawyers.

Katz, who in the 1980s authored some of the legislation that changed the way water transfers were viewed, talked about the state's dealings with the Colorado River and the federal government.

"There's nothing like arguing for state's rights with the Bush administration," Katz added wryly.

Commenting on the U.S. Bureau of Reclamation's assessment of use of Colorado River water, Katz said, "They believe in states rights except when dealing with water and presidential elections."

The keynote address was given by Dennis O'Connor, consultant to the state Senate committee on agriculture and water resources.

"There was a time during the beginning of the (State Water Project) where there were unintended positive effects to landowners along the project," O'Connor said. "Now, we're looking at how public trust issues and health and safety issues are dealt with."

O'Connor spoke about state Sen. Michael Machado (D-Linden), and his work involving the growing concern with "third-party impacts" of water transfers.

O'Connor mentioned legislation recently introduced by Machado - SB 1374 - that specifically addresses third-party impacts from long-term water transfers, and laying out criteria for which the SWRCB can approve such transfers.

The bill is scheduled to be heard in the Assembly on April 20, O'Connor said.

Those seeking a transfer must show that full disclosure of the structure and financing of a transfer, demonstrate sufficient opportunity was given for those affected to demonstrate effects, show the evidence presented by those affected was considered and that the transfer avoids or mitigates impacts, O'Connor said of the bill's language.

"What is sufficient mitigation? We are still working on that, and that may come forward in the future," O'Connor said. "This is intended to get rid of many issues that the folks down in Imperial are still wrestling with."

David Osias, an outside attorney who has represented IID, said such new legislation lends itself to being a delay mechanism for those who would find issue with transfers.

"I'm sure that's not what it's intended for, but that's what it looks like," he said.

The loser in the movement toward a water market is the California farmer, said Rhonda Azevedo Lucas of the California Farm Bureau Federation.

Most farmers in the state are family farmers, with mid-sized farms that are not "corporate-owned," Lucas said.

"Most times, when there is a use shortage, agriculture is impacted in this state," Lucas said.

More crops are being produced in California today with less water, she said, all while farmers are under assault from federal and state environmental regulations.

"The industry is losing money while increasing output," Lucas said. "We need to work to protect agriculture in this state because it is under pressure."

One of the concerns of those in attendance was the concept of reasonable and beneficial use and how nebulous the term has been in the past when dealing with water rights - and disputes over who's the best user of that water.

IID Director Andy Horne asked how water districts are going to come to some understanding about use.

"How are we going to get clarity on this issue in the future?" Horne asked. "Right now, there's a hammer hanging over every water rights owner's head: the idea of reasonable and beneficial use."

Katz said the state is no longer divided along north-south lines but east-west, and the key to solving the morass of districts invoking reasonable-use clauses is to get more people involved in the process.

"It's an urban versus rural split in the state now," Katz said. "There need to be more mid-level transfers so we can manage and plan better."

John Penn Carter, the IID's chief counsel since 1981, defended the Imperial Valley's water rights in the wake of the sweeping transfer agreement and talked about his 20-plus years defending the district's water claim.

"Has the mission been accomplished? I would say it has been, but there's a lot we still have to see through," Carter said.

Southern California had and still has the political will to beat up on Imperial County's water rights, Carter said. Now the district is fallowing, something it didn't want to do but is obligated to as part of the water transfer.

"There are huge environmental concerns at stake here, the Salton Sea being the largest," Carter said.

"None of our water rights are being transferred just our water. I think there's an important distinction to be made there."

>> Staff Writer Marc Schanz can be reached at 337-3452 or at mschanz at ivpressonline.com
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