Saturday, Sep. 13, 2008

Environmentalists want judge to void water contracts

They say the agreements are based on faulty information and delta fish face threats.

By JOHN ELLIS
The Fresno Bee

Environmentalists want the federal government to cancel or renegotiate more than three dozen long-term water contracts in the Central Valley because they say they were drawn up using flawed data.

If the request is approved by U.S. District Court Judge Oliver W. Wanger, agricultural users both north and south of the Sacramento-San Joaquin Delta say it would likely mean less water for them.

Some say the environmentalists' request has the potential to turn the state's intricately woven water world upside down.

That's because some Sacramento River users say that if there's no federal contract, they should be able to reassert their longtime state water rights -- a claim that could devastate the Westlands Water District and even hurt the Friant Water Users Authority and other San Joaquin River water users.

Wanger heard arguments Friday that the contracts should be rewritten because they were

based on flawed environmental data regarding the effects of water pumping on a threatened fish that lives in the Sacramento-San Joaquin Delta.

"First there must be a decision as to how much water is needed for the Delta smelt, and that's what's the problem here," argued Jaime Crook, an attorney for the environmental groups. "They are signing 40-year contracts, and it's a significant commitment of water."

Environmentalists say the population decline is driven largely by reduced water coming into the delta, and also because increased pumping for users south of the delta has helped wreck critical spawning areas and is damaging the smelt's overall habitat.

Last year, Wanger threw out a key opinion on the effects of delta water pumping on the smelt. Data from that opinion -- which is being rewritten by the U.S. Fish and Wildlife Service -- was used to help craft the new 25- to 40-year contracts with the 42 different users.

Environmentalists say the contracts should instead be based on the new smelt opinion, which is scheduled to be finished next year.

Trent Orr, an attorney with Earthjustice, a nonprofit legal watchdog group in Oakland, said the environmentalists aren't seeking to stop water deliveries. Instead, they want the contracts to be deemed legally invalid, but then keep the order from taking effect for one year while interim contracts are negotiated.

More potentially explosive, some say, is language in a legal brief on the contract issue filed by 22 Sacramento River settlement contractors -- water users who had used Sacramento River water before the federal Central Valley Project was constructed beginning in the late 1930s.

These users say in court filings that if there are no valid federal contracts -- as environmentalists want -- then they would revert to using water under those pre-existing rights, and the U.S. Bureau of Reclamation's "ability to operate the CVP would be severely compromised." That in turn could affect users south of the delta whose supply originates in the state's far north.

Among them are the San Joaquin River Exchange Contractors Authority, which represents owners of 240,000 farmland acres in Fresno, Madera, Merced and Stanislaus counties on the San Joaquin Valley's west side.

Unlike other Westside water users such as Westlands, the exchange contractors authority has historic water rights on the San Joaquin River -- much like the settlement contractors on the Sacramento River -- dating back to the 1870s. The exchange contractors subsequently agreed to instead take delta water via the Delta-Mendota Canal, but also reserved the right to reclaim their share of San Joaquin River water.