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Attorneys must find creative solutions to solving water supply problem

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"Whiskey is for drinking; water is for fighting over." -- Mark Twain

With a nod to Mr. Twain, the water supply equivalent of a bare knuckle brawl is brewing in California.

San Diego depends on the Colorado River and the Bay-Delta for its water supplies. But the Colorado River is mired in a drought that already has lasted eight years. This drought has left Lake Mead, the nation's largest man-made reservoir, 108 feet below its traditional level, and the four largest Colorado River reservoirs at only 51 percent of their total capacity.

And matters are just as precarious for the Delta, the area in Northern California where the Sacramento and San Joaquin rivers converge. The 2006-2007 water year just ended was the 18th driest on record for the Sacramento River, while the San Joaquin River finished its eighth driest year. Further, in April of this year, the northern Sierra snowpack stood at 40 percent of normal, the lowest amount in almost 20 years. That's important, because melting snow ultimately becomes much of California's water supply.

Moreover, Lake Shasta, the primary reservoir for the Central Valley Project, is at a 15-year low for storage. That reservoir supplies water to many California farms, homes and industries. The water level of Lake Oroville, the principal reservoir for California's State Water Project, is now about 30 percent lower than average. The State Water Project is the conveyance system that pumps water south from the Delta to Southern California.

To make matters worse, at least for water suppliers, a judge recently ruled that water pumped from the Delta must be reduced by at least one-third during December through June to protect the spawning season for the Delta smelt, a 3-inch-long endangered fish. That's historically the wettest time of the year, when most Delta water begins moving through the State Water Project toward Southern California.

The reduced water flowing from the Delta may result in cutbacks of 30 percent or more to California's water suppliers. While residential customers appear to be safe for 2008, Southern California farmers are expected to see a mandatory 30 percent reduction in water deliveries when the New Year rolls around.

Due to decreasing water supplies and projected population growth, the situation may even worsen in coming years.

So that's the problem. But what can be done? Well, suppliers could pray for rain. That worked for San Diego's mayor many years ago, but it's not totally reliable.

It seems a mix of conservation and new water sources is necessary. That's where the brass knuckles come out, and the real fighting begins.

Environmentalists generally are on one side, water suppliers on the other. Consumers are on the sidelines, often unaware that the fight is on, especially if they turn on their taps and water still flows.

Environmentalists favor conservation. And great strides have been made in conserving water indoors. Water usage has been reduced there largely through low-flow showerheads and low-water usage toilets, but also by front-loading washing machines and energy star dishwashers.

The conservation focus now has turned outdoors, where up to 60 percent of residential water is used. As Las Vegas did a few years ago, Metropolitan Water District, Southern California's wholesale water supplier, recently announced it will begin offering subsidies for replacing grass with artificial turf.

Some water suppliers even have imposed mandatory conservation measures. On the coast, Long Beach now prohibits lawn watering during daytime or more than three times per week. In the desert, Coachella Valley Water District now restricts the amount of grass permitted in front yards of new homes and on golf courses, and requires new developments to include "smart controllers," which adjust sprinkler times based on weather.

Then there's the ultimate conservation measure, water recycling, or so-called "toilet to tap." This one has caught the public's attention, and many find the thought of it unpalatable.

But voluntary conservation is mostly the order of the day. The County Water Authority, San Diego's wholesale water supplier, has challenged consumers to save 20 gallons of water per day. Los Angeles' mayor has asked residents to cut water use by 10 percent.

It's hard to win a fight by just taking punches, so conservation alone probably is not the answer. Many water suppliers agree, and they've come out swinging to develop new sources of water.

New water sources include water transfers, like CWA's purchase of water from Imperial Irrigation District, groundwater banking, or storage of water from wet years for use in dry ones, and new conveyance systems, like the peripheral canal, which would divert water south before it even reaches the Delta. But these depend on water being available to move or store. They aren't really new sources.

Then there's groundwater treatment. Companies like Basin Water and others use cost-effective measures like ion exchange or other processes to remove pollutants from groundwater, turning a once-contaminated source into drinking water.

There's also desalination. Public agencies and private companies, like Poseidon Resources, seek to tap that vast reservoir known as the Pacific Ocean. Poseidon has proposed a 50-million-gallons-per-day seawater desalination plant, the nation's largest, which it would locate at the Encina Power Station in Carlsbad. Poseidon's plant is up for its final approvals from the State Lands Commission, at the end of October, and from the powerful Coastal Commission, in mid-November.

Environmentalists oppose Poseidon's plant, citing its brine discharge, its greenhouse gas emissions and its use of the power plant's once-through-cooling intake, which they believe endangers fish. Others contend that desalinated water, currently more expensive than imported supply, is simply too costly. But how much is too much for water when there isn't enough?

So what can lawyers do?

Whenever there's a societal problem or issue, there seems to be at least one lawyer out in front, leading the charge, and several more lawyers bringing up the rear, fanning the flames. All too often that means lawyers throw sucker punches by filing litigation first and asking questions later.

When lawyers do that, it's their default programming kicking in. They're trained and duty bound to zealously represent their clients' positions.

But sprinting to the courthouse is the wrong answer to California's brewing water fight. That only will postpone necessary solutions, and substantially increase their cost.

California's water problems require compromise. That will require creative solutions to address the issues all stakeholders have. That doesn't mean all sides will get their way. It does mean, most likely, that all parties must give an inch or so. After all, the best settlement is usually the one where everybody leaves a little bit on the table.

This approach means lawyers must strive to be moderating, not inflammatory, influences who suggest innovative solutions to their clients' problems. In other words, they must put the "counsel" back in counselor.

If lawyers do that, then maybe everyone can begin to treat water like whiskey.


Solar is the Managing Shareholder of the San Diego office of Buchanan Ingersoll & Rooney LLP. He represents public entities and private companies in water and water-related issues.

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