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All American Canal Brings
International Litigation
By David Czamanskes
Winter, 2006 Sierra Club Desert Report

Consejo de Desarrollo Economic de Mexicali (CDEM), an organization of Mexicali business and agricultural interests, and two environmental organizations based in California, have filed an unprecedented international lawsuit challenging plans by the
Bureau of Reclamation to build a new, concrete-lined All American Canal to capture seepage and transfer it to urban San Diego. The existing canal delivers Colorado River water to Imperial Valley.

The lawsuit asserts that the canal-lining project will dry up thousands of acres of farmland and wetlands in Mexico of seepage from the unlined canal thereby depriving farms and wildlife of the water they have depended on for decades following the canal construction in the 1940s. It seeks to halt the construction until a supplemental environmental impact study is drafted to update the 1994 out-dated Environmental Impact Statement (EIS), and a declaration that Mexico has prior appropriation
rights to the seepage water.

The plaintiffs CDEM, a leading civic and economic development corporation in Mexicali; Citizens United for Resources and the Environment (CURE), a California non-profit promoting sustainable development and resource management; and Desert
Citizens Against Pollution (DCAP), a community-based nonprofit concerned with air quality and environmental justice issues. The litigation, filed July 19, 2005, in the US District Court in Las Vegas, Nevada, near the offices of the Lower Colorado Division of the Bureau of Reclamation, alleges that construction of a 29 mile lined anal unlawfully will divert as much as 100,000 acre feet of water which presently is used in Mexico. Seepage and runoff from the farms recharge the groundwater aquifer and, without the seepage, the salinity levels in the aquifer will escalate and render it unusable.

The suit further alleges that the proposed actions of the Department of the Interior are in violation of the National Environmental Policy Act, because: they rely on an outdated 1994 Environmental Impact Study; violate the Endangered Species Act for failing to re-consult on project impacts to Peirson’s milk-vetch, the Yuma clapper rail, and other endangered species even though there is now new information about their wetland and riverine habitat; and violation of the Migratory Bird Treaty Act, in that construction of the new lined canal will "take" listed bird species for which no lawful permits have been issued by the Fish and Wildlife Service, as required by that Act.

"The response of the United States, which asked the court on September 19 to dismiss most of the case, is that the court lacks jurisdiction to resolve the water rights issues raised in the lawsuit. The US argues that treaties provide non-judicial diplomatic remedies for resolving disputes. They referred to the 1944 US-Mexican Water Treaty which established a diplomatic process, through the International Boundary and Water Commission, to resolve any disputes between the two countries regarding allocation of Colorado River water.

The United States also argues that some of the environmental claims are barred by the 6-year statute of limitations that started when the projects’s Record of Decision was issued in 1994. As of December 1, no hearing date has been set for this litigation. Two District Court judges in Las Vegas have recused themselves from the case, and as a result it now is in the hands of Presiding Judge Phillip Pro. The States of Arizona, Nevada,California and the Imperial Irrigation District, Metropolitan Water District and San Diego Water Authority have intervened claiming that the case could unravel the Quantification Settlement Agreement.

Contracts for the $200 million canal lining project have not yet been signed, nor has work begun. Plaintiffs indicate they are prepared to seek a court injunction to prevent these actions from occurring.

Meanwhile inconclusive discussions between the U.S. and Mexico to address impacts of the canal project have been underway for some time under the auspices of the International Boundary and Water Commission (IBWC) in accord with the 1944 Water Treaty. Reportedly all the US is prepared to offer at the moment is the potential of financial assistance to help improve the existing water distribution system, thereby reducing water loss, on the Mexican side of the border.

David Czamanske is the Chair of Sierra Club California’s Water Committee

Editor’s note: Although the political will to accommodate Mexican concerns about loss of seepage water is largely lacking among US Federal and state water agencies, it should also be borne in mind that the professional staff of the IBWC has recently been decimated by a political appointee of the Bush Administration, namely the US Commissioner, now since forced out of office. Plaintiffs contend these mitigation measures are meaningless since water conservation will worsen the recharge loss to the aquifer and impacts to the wetlands. The Mexican government also is not likely to settle during a presidential election year or risk being viewed as undermining powerful political interests in Mexicali.