Arizona Sides With Nevada to Back Canal Lining Project

Arizona has sided with Nevada in opposition to a legal effort to halt the lining of the All-American Canal, an action the two states say could reduce their Colorado River supplies. Mexico now uses the seepage from the unlined canal.

At issue is a class-action lawsuit filed by a coalition of Mexican business leaders and California environmental groups to stop the canal lining. Lining the canal with concrete would capture much of the seepage, about 67,000 acre feet per year, with “saved” water then going to the San Diego County Water Authority per a complicated Colorado River deal brokered by the federal government

The lawsuit claims that Southern California’s water gains would be at the expense of Mexican farmers and south-of-the-border wetlands. The wetlands are home to more than 100 bird species including some that are endangered. It is argued that widespread environmental and economic harm would result.

The situation once again demonstrates that allocating scarce water resources in the West often is zero-sum proposition: water gained by San Diego is water lost to other users and other uses. It is another situation of interests claiming and protecting shares of an over allocated river and squeezing out every available drop.

Plaintiffs argue that seepage from the All-American Canal and its predecessor, the Alamo, has recharged the aquifer supplying Mexicali Valley for over 100 years and has been used to develop and support an agricultural economy. They further argue that the blending of seepage with the groundwater stabilizes salinity levels and maintains water quality in the Mexicali aquifer. Without it groundwater quality would deteriorate; the aquifer could become unusable.

The suit further alleges that lining the canal violates U.S. environmental laws because its effects on Mexican wetlands and migratory birds have not been studied.

Mexico has raised strong objections to U.S. plans to line the canal and has indicated it will send a diplomatic note to the United States protesting the project. Foreign Relations Secretary Luis Ernesto Derbez said his country prefers a negotiated settlement but considers Mexicans’ right to the water to be “inalienable.” A press statement said Mexico will “totally defend” its access to the water.

Claiming that Mexico is merely taking advantage of a temporary bonus, U.S. interests argue that the cross-border seepage in fact belongs to California as part of its Colorado River entitlement. The International Boundary and Water Commission supports this position.

If the canal remains unlined and seepage to Mexico continues, the federal government may have to dip into other water sources to cover demands; a drawdown from Lake Mead would be a likely option. The reservoir stores water for Arizona, Nevada and California. Whether the deficiency would come from California’s allocation or whether all the lower basin states would share it is uncertain.

This suit has the distinction among Colorado River cases of raising questions relating to international law as it pertains to the ownership of the river water. Complications are inevitable. For example, the case could likely take years due to the complexity of adjudicating international water rights.

Extending from 20 miles northeast of Yuma, the All-American Canal, a 65-year-old aqueduct, dips south and runs along the U.S.-Mexico border into Imperial County east of San Diego. The Coachella Canal is a branch of the All-American Canal, serving communities north of the Salton Sea, including Palm Springs, Palm Desert and Indian Wells.

High Court’s Wetlands Review May Limit CWA’s Reach

In cases with far-reaching consequences, the U.S. Supreme Court agreed to hear two appeals by developers claiming they were penalized by an excessively broad interpretation of the 1972 Clean Water Act. The developers are seeking reversal of lower court rulings upholding the Army Corps of Engineer’s authority to prevent protected wetlands from being filled in.

What in effect will be addressed by the two cases — Rapanos v. U.S., 04-1034, and Carabell v. Army Corps of Engineers, 04-1384 — is the contentious issue of environmental regulation and the rights of private property owners.

Much is riding on the outcome of these two cases, with the high court’s decisions likely to determine the future course of wetlands policy. Interest in the cases is further heightened since these are likely to be first environmental decisions by new Chief Justice John Roberts.

The former case involves John Rapanos, a Michigan landowner found in violation of the CWA for filling in protected wetlands on three sites he intended to develop. He argued that the law only applies to navigable waterways and to streams and wetlands adjacent to such waters, not to his properties located 20 miles from any navigable water.

When authorizing the federal government to prevent certain discharges the CWA does in fact indicate discharges into “navigable waters.” The Environmental Protection Agency and the Army Corps, however, adopted regulations to protect distant ponds and wetlands. Their rationale was that if such wetlands were polluted or destroyed, rivers and bays could be adversely affected.

This meant that regulators would not at times allow private wetlands located miles from a river or bay to be drained for development since pollution can flow downhill to navigable waters. The debate is about how far upstream the regulations can be applied to protect those waters. In other words: what is the reach of a hydrological connection? The court ruled in favor a broad, far-reaching interpretation.
Rapanos is now challenging the constitutionality of the CWA by arguing that Congress improperly applied the clause on interstate commerce to regulate “non-economic intrastate activities like the filling of remote, nonnavigable intrastate wetlands in this case.”

Much of the CWA’s regulatory authority derives from passages in the Constitution empowering Congress to regulate commerce between the states. Wetlands warrant federal protection because they are said to provide flood control and habitat values affecting interstate commerce. If the Court decides otherwise this could limit the federal government’s ability to protect resources in reference to interstate commerce. This in turn could affect federal actions in response to the Endangered Species Act, the Safe Drinking Water Act, and some health and safety regulations.

Some western wetlands may be especially vulnerable if changes in wetland regulations result from the court’s decision. The region has isolated wetlands that are dry most of the year; their protection could be undermined.

The high court will consolidate the Rapanos’ case with Carabell v. U.S. Army Corps of Engineers. The latter case involves a condominium developer challenging the corps’s authority to restrict development on a wetland area; a manufactured barrier separates the proposed fill area from forested wetlands. A lower court ruled that federal regulations applied in the situation.

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