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Judge voices support for big California water pact

By Don Thompson
Associated Press / November 21, 2011

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SACRAMENTO, Calif.—A state appeals judge on Monday strongly defended a landmark agreement on how Southern California gets its water, casting aside arguments that the pact should be scrapped because the state essentially wrote a blank check to save a dying lake.

Justice Ronald Robie noted that the agreement addressed disputes that have long defied easy answers.

"It's a question of finding a proper solution to a problem that has existed for a long time, and that requires ingenuity," he said during a hearing.

A three-judge panel of the 3rd Appellate District is considering whether to overturn the pact, which created the nation's largest farm-to-city water transfer and set new rules for dividing the state's share of the Colorado River. Farmers and environmentalists are challenging the pact, while California water agencies say it is critical to keeping an uneasy peace regarding the river.

The court is expected to rule within three months.

If a lower court ruling stands, consequences could ripple to six other western states and Mexico, which also rely on the 1,450-mile river that flows from the Rocky Mountains to the Sea of Cortez. The agreement remains in effect while the case is under appeal.

The accord between California's warring water agencies keeps the state to a limit established 80 years earlier of 4.4 million acre-feet of water a year -- enough to supply about 9 million homes. The centerpiece called for California's Imperial Valley -- a farming region of 175,000 residents that gets nearly 20 percent of the entire water supply -- to sell water to San Diego.

In January 2010, Sacramento Superior Court Judge Roland Candee gutted the pact in a decision that said the state violated its constitution with an open-ended commitment to restoring the Imperial Valley's Salton Sea, where receding shores are layered with dead fish. California's largest lake is more than 200 feet below sea level and relies on water that seeps down from nearby farms. The sale of water to San Diego further threatens the lake's future.

Candee ruled that a state law committing California to save the lake no matter the cost set an unacceptable precedent for the government to pledge money to other projects it couldn't afford. The administration of former Gov. Arnold Schwarzenegger pegged the cost of saving the Salton Sea at a whopping $9 billion.

Robie, the presiding judge, repeatedly challenged attorneys who were supporting Candee's opinion during Monday's hearing as the two other judges were silent. He said it was too early to say that the state violated its pledge to save the lake.

"I can't tell you if the Legislature will approve the money, but you can't tell me it won't," he told one attorney.

Malissa McKeith, an attorney representing Imperial Valley landowners, said after the hearing that she didn't want to predict the outcome but the state would be on the hook for the Salton Sea if the pact is upheld, "up to billions of dollars."

"It's a sad day for the sea," said McKeith, who was repeatedly interrupted by Robie during her arguments. "The court said we can cash the state's blank check when the time comes, even if it's going to bounce."

David Osias, an attorney for the Imperial Irrigation District, which is defending the agreement, said the appeals court had done its homework and was well-prepared. He declined to comment further after the hearing.

California long used more of the Colorado River than it was granted under agreements with Arizona, Colorado, Nevada, New Mexico, Utah, Wyoming and Mexico. Its overindulgence was never a big problem until Sunbelt cities like Phoenix witnessed explosive growth and other states clamored for their full share. Drought only exacerbated tensions.

The 2003 agreement has already had a big impact in California. The water transfers have made the San Diego area less dependent on the Metropolitan Water District of Southern California, a behemoth that serves nearly 19 million people and was virtually San Diego's only source of water in the early 1990s.

The pact remains controversial in the Imperial Valley, eight years after the Imperial Irrigation District board approved it in a 3-2 vote under heavy state and federal pressure. Critics say water sales to San Diego have failed to bring enough benefits to the region.

Critics also worry that the Salton Sea's receding shores will blow dust, worsening air quality. The lake -- about one-third saltier than the ocean -- continues to draw a tremendous variety of birds, but biologists say they will disappear without fish to prey upon.

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Associated Press writer Elliot Spagat in San Diego contributed to this report.

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