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The San Diego County Water Authority won $190 million in court this week from the Metropolitan Water District of Southern California – but it also won potentially even more valuable water rights.
For years, we’ve been watching the legal battle between the two water agencies because Metropolitan delivers 75 percent or more of the county’s water and San Diego is accusing it of price gouging.
A judge agreed that Metropolitan has been charging too much to deliver some water to San Diego from the Colorado River. The judge said Metropolitan owes San Diego $188 million, plus interest.
But San Diego had another significant win that could be just as important: The judge said the County Water Authority is entitled to a greater share of Metropolitan’s water supply. If the drought continues, that may come in handy.
Metropolitan supplies water to 26 agencies, including the County Water Authority here. Those agencies, in turn, provide water to 19 million Southern Californians.
If the drought continues, the agencies could begin fighting over dwindling supplies of water.
Because of this week’s ruling, San Diego water officials say they are now in a better position to protect the county’s water supply in the future.
San Diego currently has rights to about 18 percent of Metropolitan’s water.
The County Water Authority may now be entitled to just over 23 percent of Metropolitan’s water, according to calculations the County Water Authority presented during the trial. Metropolitan said it had not done a similar calculation because it plans to appeal the ruling.
That change may not seem like a lot – 5 percentage points more – but it could be important if water supplies continue to shrink.
According to the Water Authority, based on 2014 water sales, San Diego would have rights to about 90,000 more acre feet of Metropolitan water. The Water Authority’s entire supply in 2014 was 670,000 acre feet – so 90,000 acre feet is huge. (An acre foot, the big unit that water officials use, is about 325,000 gallons of water.)
For context: 90,000 acre feet is more water than the Water Authority will get each year from the new desalination plant – a plant that cost $1 billion to build.
“It’s a very, very, very valuable water right and the court heartily concurred,” said Dennis Cushman, assistant general manager for the County Water Authority.
It’s unclear how these rights, known as “preferential rights,” can and will be used. San Diego’s fight over these rights goes back decades.
Metropolitan says the rights have never been used as the basis for making cuts and that there are more equitable ways to divvy up water during a drought.
“We’ve been through three pretty dramatic droughts and we’ve yet to enact preferential rights,” said Metropolitan spokesman Bob Muir. “We’re hoping to deal with it by equitably dealing the pain, so to speak.”
The rights, for instance, do not correspond to need. A local water agency that has more people relying on water may have less rights to Metropolitan water, even though that agency may need the water more.
San Diego, for its part, has complained about preferential rights in the past – when it had fewer of them. San Diego officials argue Metropolitan used those rights as a factor in making cuts during the early-1990s drought.
So how did San Diego win? Water agencies accumulate these rights based on the amount of money they put into Metropolitan over the years for construction costs and operating expenses. But there is one expense that did not help them accumulate more rights: the amount of money they spent directly on buying water.
Does that sound weird – why should every other cost but the cost of water count? As Judge Karnow said, it was unexplained. But the quirk has traditionally benefited Los Angeles, which ponied up money to create Metropolitan back in the late-1920s. Historically, the city has bought most of its water from the Eastern Sierras not Metropolitan but it maintained the largest share of rights to Metropolitan water because it was an early investor in Metropolitan’s delivery system.
San Diego, by contrast, was not an original investor in Metropolitan, even though they have bought more water from Metropolitan than any other agency over the years.
In 2014, for instance, San Diego was the biggest single buyer of Metropolitan water, even though Los Angeles has the greatest rights to buy Metropolitan’s water.
San Francisco Superior Court Judge Curtis Karnow ‘s ruling this week upended the way Metropolitan had been calculating part of San Diego’s right. San Diego gets a lot of water from the Colorado River through Metropolitan. Some of that water, Metropolitan has rights to; some of that water, San Diego has rights to. But San Diego never built its own set of pipes to get Colorado River water into the county, so San Diego has been paying Metropolitan for Colorado River water San Diego owns.
Metropolitan contended that San Diego was paying for the purchase of that water, therefore the payments should not help San Diego accumulate new rights. San Diego argued it was paying for the delivery of its own water – an expense that would help San Diego accumulate water rights. The judge agreed with San Diego.
Metropolitan will appeal the ruling. That means more years of battling and uncertainty. The case has already cost both agencies a combined $33 million.
For now, according to the County Water Authority, San Diego will be entitled to a greater share of Metropolitan’s water than Los Angeles. That means, when push comes to shove, San Diego could be entitled to more water than Los Angeles during a drought.