Quantification Settlement Agreement formally invalidated
By: David Steffen

The Imperial Irrigation District anticipated Judge Roland Candee’s final judgment that invalidates the nation’s largest agricultural-to-urban water transfer, and IID is already appealing.

“We’ve been expecting this document, and we’re prepared for it,” IID General Counsel Jeffrey Garber said.

On Feb. 11, Candee signed the final judgment that renders the Quantification Settlement Agreement invalid. But neither IID nor the county received the judgment until Thursday.

Candee stated the QSA may continue until Feb. 11, at which point IID must request a stay, or continuation, of the water transfer from the court of appeals.

IID Director John Pierre Menvielle said IID has already begun the appeals process.

“From what I understand, nothing has really changed from the tentative to the final, and we planned for an appeal and stay,” Menvielle said. “We’re already working on that.”

On Jan. 14, Candee issued his statement of decision, which differed little from his tentative ruling in December. In both documents, Candee stated one of the 12 QSA contracts was unconstitutional.

The contract, called the Joint Powers Authority, stated California would pay any environmental mitigation fees in excess of $133 million. Among the environmental mitigation fees were those related to Salton Sea restoration. Candee compared the contract to a blank check and stated California could be obligated to pay any remaining environmental fees, even if they amounted to billions of dollars. Candee ruled that the JPA was intertwined with the remaining 11 contracts and ruled them invalid, as well.

The QSA was signed in 2003. It transfers about 300,000 acre-feet of water annually to the San Diego County Water Authority, the Coachella Valley Water District and the Metropolitan Water District of Southern California.

Through the QSA, IID sells the water to the water agencies and uses the revenues to fund water conservation measures within the district. The intent was to conserve water in California to keep the state’s water use within the Department of the Interior’s annual 4.4-million acre-foot cap for the state.

Menvielle said it is important to appeal the judgment and keep the QSA.

“To stop this thing with all the progress that’s been made doesn’t make any sense,” he said.

The IID board instructed its QSA attorney, David Osias, to file IID’s intent to appeal in December. Garber said any party can file a motion to seek compensation for attorneys’ fees from the opposing party.

IID requested a second legal opinion from Attorney Stuart Somach, of the Sacramento law firm Somach, Simmons and Dunn. He said the 3rd District Court of Appeals would likely grant the QSA a stay during the appeals process and uphold the QSA. He said he has argued before the 3rd District Court of Appeals before.

“On both fronts, I think it’s very good,” Somach said by telephone Thursday.

The appellate court will likely grant the QSA parties a stay after Candee’s 30-day stay expires Feb. 11, Somach said.

“I believe the appellate court will want to maintain the status quo until it’s able to make its decision, in part because the QSA has been in place for a number of years and because of the disruption it will cause if a stay isn’t granted,” he said.

Somach said if the QSA were permanently invalidated, the federal government would likely take control of the water. He based his prediction on his experience in water law elsewhere in California.

But IID Director Michael Abatti said he disagreed with Somach.

“I do not believe the federal government will come down and take over IID,” Abatti said.

In December, the IID board voted unanimously in closed session to seek an appeal. Abatti rescinded his vote and said he wanted to wait for the judge’s final ruling before making a decision. He said he feels the same after Thursday’s judgment.

“I will not change my vote,” Abatti said. “It was a bad deal then and a bad deal now.”

County Counsel Michael Rood said Imperial County expected the final judgment to reflect the tentative ruling and statement of decision. He said the Board of Supervisors will discuss options, which he did not specify, at Tuesday’s closed session meeting.

“We need to review this carefully at this point and review all of the options available to the county of Imperial,” he said.

SDCWA officials said the water agency would work with other QSA parties to seek a stay and an appeal of Candee’s ruling. The Imperial County Farm Bureau declined to comment.

Abatti said the IID should try to improve upon the QSA for the future.

“I respect the judge’s decision, and this board needs to improve on the status quo of the past six years,” he said.

Menvielle said the QSA is the preferred option to protect the IID’s water rights.

“It’s definitely not perfect, but it’s the best we were able to deal with back in 2003,” Menvielle said.