Limit south state's Delta access to slow its growth, judges rule

By Mike Taugher, CONTRA COSTA TIMES
Friday, October 14, 2005

A decade of water planning was thrown into deeper turmoil when a state appeals court ruled last week that officials should have considered cutting Southern California off from using more Delta water.

In a stinging 224-page decision, a unanimous three-judge panel struck at the heart of one of California's most pressing dilemmas -- most of the water is in the north and most of the people are in the south.

If the state does not send more water to accommodate growth in Southern California, the court suggested, Southern California simply might not grow as fast as projected.

The decision, which is likely to be appealed to the state Supreme Court, tosses out the landmark plan known as CalFed to fix the Delta's environmental problems and stabilize water supplies throughout the state. It comes on top of months of bad news for the program, including a gloomy financial outlook, species declines and an increasingly discontented membership.

The 3rd District Court of Appeal ruled that before the CalFed program was adopted in August 2000, planners improperly assumed that water supplies from the Delta must increase to serve rapid population growth, which was forecast to increase to 49 million people in 2020 from about 36 million today.

"However, if there is no water to support the growth, will it occur as projected? Population growth is not an immutable fact of life," the court said in the ruling issued Friday.

Unless the environmental underpinnings for CalFed are redone, the ruling could radically change the way water is captured, stored and distributed around the state in the future. While state officials said this week that an appeal to the state Supreme Court is likely, they would not comment on the effect the order would have if it is left standing.

"We are still exploring the implications of the court's ruling," said Keith Coolidge, a spokesman for the Bay-Delta Authority, the state agency that oversees CalFed.

Still, by throwing out the document, called the CalFed Record of Decision, the court casts into further disarray a program that is the result of 10 years of planning and has spent $3 billion.

Environmentalists said the impact of the court decision is potentially monumental.

"The court stuck a huge crowbar in the spokes of the CalFed wheel. ... This is a monster," said Bill Jennings of the California Sportfishing Protection Alliance.

For environmentalists, the court order opens up the possibility that increased water use in the face of growth is no longer inevitable.

"People who are concerned about growth and sustainable use of natural resources have never felt, politically, that using water to control growth was a viable policy option," said Gary Bobker, program director at the Bay Institute. "It was felt to be a backdoor effort when leaders should be dealing with it at the front door."

Others reacted cautiously, saying that the ruling does not force state water officials to reduce water deliveries out of the Delta -- only that they consider reducing those deliveries.

"It opens an opportunity," said Dante John Nomellini, a lawyer for the Central Delta Water Agency, one of several entities that sued to overturn the CalFed decision document.

Southern California water users downplayed the ruling.

"The notion that we don't grow because of the lack of availability of a given water supply is poppycock," said Tim Quinn, vice president of the Metropolitan Water District of Southern California.

The appeals court, however, called the failure to consider decreasing the amount of water delivered from the Delta a "glaring defect," adding that "smaller water exports from the Bay-Delta region (could), in turn, lead to smaller population growth due to the unavailability of water to support such growth."

Up to now, the state's water officials have been on the opposite path. The state Department of Water Resources was planning to issue draft environmental documents this month to help clear the way for plans to increase the pumping capacity of state-owned pumps near Byron by 27 percent.

DWR officials declined to comment this week, saying they were still evaluating how the court decision might affect the issuance of those documents and their plans to boost pumping capacity.

But the ruling potentially affects those plans, along with more intricate efforts to rejigger the state's plumbing system in ways that allow managers to extract more water out of it.

"CalFed has got to come up with a (replacement) plan or a new environmental justification for the same plan that deals with these flaws," said Michael Jackson, a lawyer who represented Northern California counties when they sued in the lower court to overturn the CalFed plan.

Even before the court's decision, CalFed was reeling from a series of setbacks that began in late 2004 when state lawmakers began questioning the program's finance plan.

Today, CalFed is undergoing a series of audits. Lawmakers slashed its budget this year to a "life-support" level. Its executive director and lead scientist resigned this summer. It is beginning to run out of bond funds, and the Delta, a key resource CalFed was meant to protect, is drawing intense scientific scrutiny because of the unexplained and serious ecological crash of its fish and food sources.

Nomellini said that since the program is already undergoing comprehensive reviews, the time is ripe to reconstruct CalFed.

"We feel the CalFed process was corrupted from the beginning, as are most water efforts in California," he said.

Mike Taugher covers the environment. Reach him at 925-943-8257 or mtaugher@cctimes.com