Introduction

Like a bad hangover, Californians awoke to unsettling news on New Year’s Day 2003: the state had failed to resolve its ongoing Colorado River dilemma. Despite the haze about why the Quantification Settlement Agreement (QSA) fell through, the implications were clear: California would suffer a sizable cut in the amount of water it had become reliant on over the years, threatening the political and economic stability of the entire state. But indications are that the last nail is not in the coffin yet.

In the days since the breakdown, Gov. Gray Davis has issued directives to bring the state Legislature into the fold and has brought the California parties to the table for negotiations. Responding to the call, the Legislature held hearings in January to try and comprehend what went wrong and, if possible, help to remedy it. As this Western Water went to press, all involved parties were under a “gag order” to not discuss what, if any, progress has been made since the New Year. All the while, looming in the background, is the dark reality of a March 18 court hearing that could collapse the fragile framework of the deal, sending the parties involved spiraling into a litigation abyss.

Undisclosed sources close to the Governor confirmed that the negotiating southern California parties were close to a resolution on the outstanding issues surrounding the agreement, though none would go on the record verifying the purported agreement. Also unknown was whether the federal government would accept the agreement and allow the release of additional Colorado River water for California.

From the onset, it was a very careful balancing act. Under requests from the Secretary of the Interior and the other states reliant on the Colorado River for water, the four big southern California water entities, Imperial Irrigation District (IID), Coachella Valley Water District (CVWD), Metropolitan Water District of Southern California (MWD) and San Diego County Water Authority (SDCWA), were on the verge of coming to agreement on a plan to reduce their annual use of the Colorado River. The rush was on in order to meet the federally mandated Dec. 31, 2002 deadline for the parties to sign the QSA – the document that would quantify the amount of water IID and CVWD have a right to from the Colorado River.

The QSA is key to California’s Colorado River Water Use Plan (known colloquially as the “4.4 Plan) intended to wean the Golden State from its reliance on the surplus flows from the river and return California to its annual 4.4 million acre-feet basic apportionment of the river. Feverishly intense meetings were held to try and reach resolution. Parties conceded on a variety of issues, in the name of consensus, while trying to give equal weight to the needs of the environment, growing urban demands and historic agricultural rights. Versions of the QSA were approved, vetoed and re-submitted. But then, as the clock struck 12 on New Year’s Eve, the balancing act fell flat on its face.

On New Year’s Day, as promised, Interior Secretary Gale Norton cut Colorado River water orders for southern California – denying the state the surplus flows it had indulged in for years. IID took a 205,000 – 330,000 acre-feet hit, depending on who is asked. (There is discrepancy about whether or not the 110,000 acre-feet that IID transfers to MWD annually under a 1988 transfer/conservation agreement counts towards IID’s allocation.) Also penalized was MWD, which sustained a 536,500 acre-feet reduction – nearly half the amount of water needed to keep its 1.3 million acre-feet Colorado River Aqueduct full. Because the QSA was not signed by the deadline, southern California (primarily MWD) and the other two Lower Basin states are not permitted to use surplus water in 2003 under the 15-year Interim Surplus Guidelines (surplus guidelines) – another “linchpin” of the 4.4 Plan and one that would help California to make a “soft landing” in its reduction of Colorado River use. (When the surplus determination portion of the guidelines were suspended, Nevada also lost surplus water from the river – about 37,000 acre-feet or 11 percent of its annual supply – because the parties did not sign the QSA.)

“In a conflict between agriculture and the public health and the safety of people, people (cities) will win,” said Norris Hundley, a University of California professor and author of Water in the West and The Great Thirst. “We’re not at that point yet, but the population is growing faster than the water supply.”

What at first seemed to favor consensus has instead turned to litigation and infighting.

IID has made it clear it does not intend to stand on the sidelines and watch as cities encroach on what it views as senior vested rights to the Colorado River. Because the Department of the Interior (Interior) denied IID its full requested water order for 2003, IID filed suit in U.S. District Court on Jan. 10 against Norton, Interior Assistant Secretary for Water and Science Bennett Raley and Robert Johnson, the U.S. Bureau of Reclamation’s (Bureau) lower Colorado regional director.

The suit alleges Interior is violating IID’s water right to the Colorado River by not honoring existing contracts and instead reallocating Colorado River water to flow to junior water rights holders. MWD and CVWD will receive water that would have flowed to IID had it gotten its requested order. In a more recent development, IID filed a motion in U.S. District Court on Jan. 27 for “injunctive relief,” asking the court to require that Interior release more water to the district. A hearing on the matter is scheduled for March 18. CVWD and MWD have since filed motions to intervene with Interior against the IID motion, threatening to undo years of progress and potentially send any post-deadline QSA negotiations to a grinding halt if litigation ensues.

While rumors swirled about the potential for state legislation that could seek to cap IID’s water right at 2.6 million acre-feet or break apart the irrigation district which holds the water rights of farmers in trust, nothing has happened to date. Instead, State Sen. Mike Machado, D-Linden and Sen. Sheila Kuehl, D-Santa Monica, introduced a bill (SB117) on Feb. 3. Intended as a spot bill, the language declares the “intent” of the Legislature for the parties to come to agreement on the QSA.

“This bill does not affect IID’s water use but is intended as a placeholder to implement a state-mediated settlement, if possible,” said Jeanine Jones, an engineer with the California Department of Water Resources (DWR). Jones is involved with the QSA negotiations.

Part of that state mediation will likely address a lack of firm money from the state to help lubricate the QSA because money proved to be a major hurdle during the 2002 negotiations.

“There were too many financial add-ons,” said Dennis Underwood, vice president of Colorado River Affairs for MWD. “It caved in as a result of its own weight.”

All sides have echoed the need for financial support from the state.

“The real bottom line, on most aspects of this deal, is money,” said Steve Robbins, general manager for CVWD.

Maureen Stapleton, general manger of SDCWA, agreed. “To satisfy the long-term viability of the deal, money is going to have to be made available by the Legislature,” she said.

“The problem from our standpoint is, if the other agencies, or the state, don’t come up with the money for environmental mitigation,” said IID board member Andy Horne, “where does that leave us?”

Most would argue the sticking point for the water transfer (and ultimately the QSA) has been the environmental compliance aspects of the transfer; in particular, the endangered species compliance related to the Salton Sea – a 40-mile long, enclosed inland body of water that is naturally becoming too saline to support its fishery and the birds that feed there. IID planned to implement on-farm water conservation (more efficient irrigation, canal lining, pump-back systems, etc.) and use the conserved water for transfer to SDCWA. But state and federal wildlife managers determined that conserving the agricultural runoff that provides 95 percent of the inflow to the sea would hasten its move to hypersalinity and impact endangered species such as the brown pelican.

Reflecting that finding, the State Water Resources Control Board (State Board), the state governing body responsible for approving or denying water transfers, preliminarily approved the IID-SDCWA water transfer in August 2002 but made it mandatory that the transfer not materially impact the salinity of the Salton Sea, beyond its natural progression, for the first 15 years. Similar language calling for the transfer to not impact inflow to the Salton Sea was echoed in SB 482 – a bill passed in late 2002 that amended the State Fish & Game Code to accommodate the transfer and committed $50 million from the state for either a state match to federal Salton Sea restoration actions or for state habitat conservation planning.

To encourage the local agencies to reach agreement, separate state-sponsored legislation also expressed the intent to provide $150 million from Proposition 50 for projects that support QSA-related water transfers -@¢ringing a total of $200 million in state funds to the table. In the final days of negotiations leading up to the deadline, the governor’s office also offered a $150 million loan guarantee to cover any “stranded costs” associated with Imperial Valley growers’ implementation of water conservation programs. Should the water transfer collapse before IID had a chance to recoup its investments, IID did not want to be left holding an empty bag.

In large part, it was the need to obtain the commitment of this state funding in the 2003 legislative session that caused Interior to determine that the QSA could not be executed by the Dec 31 deadline.

“It has to be a long-term, no off-ramp agreement that demonstrates the California parties can implement transfers and achieve benchmarks,” said the Bureau’s Johnson.

While information concerning the current status of the QSA negotiations is sparse, questions surrounding the perceived immediacy of the QSA exist.

At least one official for the Southern Nevada Water Authority (SNWA), the water purveyor for the Las Vegas area, seemed to indicate the need for surplus is not as dire as some would believe.

“While we’re very interested in the [Interim Surplus] guidelines for our immediate needs, we’re not exactly counting on it,” said J.C. Davis, a spokesperson with SNWA. Davis said SNWA plans to draw on the 250,000 acre-feet of water it has banked in underlying aquifers as well as potentially draw on water it has stored in the Arizona Water Bank. “And if the drought continues and the lake elevation drops we’re not going to be allowed surplus flows whether the guidelines are in place or not.”

Southern California parties also seem to be taking precautions to ensure the availability of additional water supplies without the Colorado River flows under the special surplus guidelines, leading to speculations that interest in the QSA could wane.

MWD announced in January that not only did it have a two-year water supply to weather the lack of surplus flows, but that it, “expects to meet southern California’s imported water demands for the next 20 years, even without the QSA,” MWD CEO Ronald Gastellum said in a Jan. 6 statement. MWD clarified the statement by saying that the 20-year accounting is based on normal water years in the state and on the Colorado River system, combined with dry year reserves and current and future water investments. MWD announced plans for dry-year options to transfer up to 200,000 acre-feet of water annually from Sacramento Valley farmers at a cost of up to $20 million, should the need arise.

Hundley pointed out that these most recent pronouncements harken back to MWD’s 1952 Laguna Declaration which “promised all the water needed” for all of MWD’s member agencies.

Likewise, SDCWA is in the process of rapidly developing some of its own water supply.

“We’re pursuing the largest seawater desalination plant in the Western Hemisphere,” said Dennis Cushman, assistant general manager for SDCWA. The SDCWA board recently approved a preliminary agreement with Poseidon Resources Corp. and identified desalination as the best way to provide new water to the San Diego region. Cushman said the plant would produce about 56,000 acre-feet of drinking water annually with room to expand. A portion of the project, about $250 per treated acre-foot, is being funded through MWD as part of its Seawater Desalination Program.

As this issue of Western Water went to press, the California parties said they were under a “gag order” placed on them by the Governor’s Office as discussions over resolving the QSA continued. Where is the QSA now and how did it get there? Is there a future for this document?  This issue of Western Water will examine the history leading to the QSA, the current state of affairs of the 4.4 Plan and possibly give readers a clearer crystal ball with which to speculate about California’s water future on the Colorado River.

NOTE: A complete copy of the 16-page magazine is available from the Foundation for $3. Visit our Products Page and add the March/April 2003 issue of Western Water to your shopping cart.

Editor’s Desk

This issue of Western Water focuses on California’s 4.4 plan. Writer Josh Newcom did a great job of summarizing the latest events – changing daily – as the parties strove to reach an agreement that would keep Colorado River surplus water flowing to California.  As we went to press, the discussions looked promising but pitfalls remained.

Desalination was the topic of the January/February issue of Western Water and we’ve heard from many of you who are interested about the feasibility of the new large-scale plans to desalt ocean water in California. Another alternative water supply growing in importance each year is recycled water.

I recently spoke at the California conference of the WATEREUSE ­organization. Like desalination, the increasing demand for water in California, coupled with the uncertainty over other supplies, has increased the focus on water recycling particularly in the southern portion of the state.

Currently, about 700,000 acre-feet of water are recycled annually in California and plans call for 1 million acre-feet of water to be recycled by 2010. Most of the water is used for agricultural and landscape irrigation. Communities are discovering how a water supply can be expanded through the use of recycled water. This water is recovered from wastewater and then highly treated to exact purification standards. Recycled water is also used for toilet flushing in high rise office buildings, and office cooling towers. When you think about it, it doesn’t really make sense to use purified drinking water to flush toilets! But the public’s perception of recycled water is affecting how much of this water is being used in the state.

For example, I was in an airport recently and overheard a discussion about the idea of drinking water that had been treated and returned to the ground or surface water for later use. Listening to the conversation, it was as if the people talking had never heard of the hydrologic cycle. Understanding how nature recycles water through this circular process is critical to people making informed decisions about using recycled water because there is no new water on this earth.

That’s why school education programs that foster science education and critical thinking about water problems are so important, especially in the arid Western United States. With increased new technology, we are learning more about the ingredients in our water and questions about the safety of recycled water should be discussed. However, let’s not make decisions based on poor scientific understanding or simply wrong information.

To help you get correct information on recycled water, we have put together guides and videos on recycled water. See page 15 of this magazine for a list of available materials on water recycling and the Colorado River or check them out in our Products Page. And let’s keep an open mind to following nature and finding uses for our water reuse.

– Rita Schmidt Sudman

In the News

New Laws to Regulate Bottled Water?

California is a mecca for the bottled water industry. About 70 percent of Californians drink bottled water at least some of the time and that translates into about one-quarter of the annual income for the $6 billion industry. But there could be some challenges ahead for the Golden State’s water bottlers and vendors.

Two bills are currently under consideration in the California Legislature to require private bottled water companies and vending machine operators to “prepare and distribute an annual consumer confidence report containing specified information to its respective customers.” AB 83, introduced by Assembly Member Ellen Corbett, D-San Leandro, and its companion bill, SB 50, introduced by Sen. Byron Sher, D-Palo Alto, also would require the bottled water facilities and vending machines to undergo annual inspections to ensure they meet state health requirements.

The bill is sponsored by East Bay Municipal Utility District (EBMUD), the Natural Resource Defense Council (NRDC) and Clean Water Action.

“Bottled water manufacturers don’t have to disclose a thing about the quality of their water, yet they market themselves as being far more healthful than tap water,” said Randele Kanouse, a lobbyist for EBMUD. Kanouse said California municipalities have been required to file annual reports under the California Safe Drinking Water Act for the past 12 years. These consumer protection disclosures list all of the constituents found within the drinking water provided by the local municipality. Kanouse said EBMUD and the other proponents just want the same requirements extended to private industry as well.

There are already very stringent and comprehensive rules, laws and standards in place that address the quality of bottled water,” said Stephen Kay, a spokesman for the International Bottled Water Association. Kay pointed out that in 2000, the State Legislature passed a bill requiring bottled water companies to place company contact information on their labels so that consumers can obtain additional information about the water.

“There are already laws on the books regulating the bottled water industry,” Kay said. “We advocate the enforcement of existing laws rather than the creation of new laws.”

Those supporting the bill say ammunition for the proposed law is a 4-year-old report filed by the NRDC in March 1999 entitled “Bottled Water: Pure Drink or Pure Hype?” In the controversial report, NRDC concluded that there were many regulatory gaps with regards to the production of bottled water and that about one-third of the bottled waters tested contained contamination that exceeded state or industry standards for levels of chemicals, microbiological contaminants and bacteria, or naturally occurring compounds such as arsenic or lead. Currently, the bottled water industry must adhere to federal Food and Drug Administration and Environmental Protection Agency standards for drinking water and packaged food products.

With bottled water sales increasing substantially every year, the new bills may lead some to conclude that municipalities like EBMUD are just trying to offset the financial hit they are taking from people turning off the tap and turning to bottled water for their drinking water. Kanouse denied any concern that the private industry might be biting into municipal profits.

“We look at bottled water as helping with water conservation,” said Kanouse, who indicated the impact of bottled water on the amount of water EBMUD sells for ingestion at less than one-half a percent. “Whenever customers shift to bottled water, that’s less water we have to divert from rivers and streams.”

by S. Joshua Newcom