Today, had everything gone well for San Francisco, was to be the first time it could deliver water purchased from the Modesto Irrigation District.
Things have not gone well. Protests by city officials, Modesto-area farmers and domestic users prompted the MID to postpone a board vote on the first sale contract three times, making the July 1 start impossible.
The vote now is scheduled for July 24, which could allow deliveries to start Aug. 1, the date in the revised contract released last week.
But approval of the sale, if it happens, is almost certain to bring multiple legal challenges. Some critics have talked of mounting a recall against some MID directors or a referendum to overturn a vote to sell.
Much of the attention is on the 2005 agreement under which the MID would supply Tuolumne River water to an expanded treatment plant for Modesto-area domestic users. To sale critics, the wording could not be more clear:
"District agrees that its commitments to its agricultural customers and to city shall be met before any subsequent water transfers for delivery of water outside district's boundaries."
MID officials say they have reviewed drought records over several decades and determined that the sale of about 2,500 acre-feet which amounts to 1.6 percent of its average annual deliveries would leave enough water for farmers and Modesto. The term of the sale would run for 50 years, though it has offramps for both parties.
The district board also could vote July 24 to launch a study on selling an additional 25,000 acre-feet to San Francisco, freed up by conservation projects planned for the canal system. The study could take more than a year, and this transaction, too, could become mired in litigation.
SF would take precedence
The immediate attention is on the first sale, which San Francisco officials say is designed as a dry-year supplement for their 2.6 million customers in the city and county of San Francisco and three other Bay Area counties: Alameda, San Mateo and Santa Clara.
The initial and the revised contracts would give these people preference for this water during dry years over the MID's farmers and domestic users.
The revision does attempt to ease concerns with an added clause: "MID will meet its contractual obligations to the city of Modesto under the (2005 agreement)."
The proposal also would allow either party to end the sale at 10-year intervals if the party finds that increased requirements for river flows have complicated matters.
The critics are not going away. The Stanislaus Taxpayers Association has threatened to sue to stop the sale if the city of Modesto does not do so.
"We are strong in our position that the city has an absolute obligation to demand fulfillment of any agreement, but especially the obligation to supply ample, safe and continuous water to its citizens," president Dave Thomas said in an e-mail Wednesday. "Any failure of that obligation would be a breach of contract with the citizens."
The Stanislaus County Farm Bureau, which opposed the initial sale contract, is reviewing the revised version, executive manager Wayne Zipser said. The group could not rule out the possibility of a legal challenge, but it's too early in the process to decide, he said.
The Farm Bureau has talked with the MID about raising irrigation rates to pay for some of the system improvements the San Francisco income would fund.
The Tuolumne River Trust, which seeks increased flows to enhance the river fishery, claims that San Francisco relied on outdated information in the 2008 study on the environmental effects of the sale. It also says a drop in Bay Area demand makes the sale unnecessary.
Saturday, the group protested the sale at a San Francisco gathering that concluded its annual Paddle to the Sea. Participants boated on parts of the Tuolumne and other rivers over the past month to urge increased flows.
Launching a PAC
Modesto-area residents Reed Smith and John Duarte have filed papers with the Stanislaus County election office to launch a political action committee called StopMIDInsanity.com.
Both men said last week that they are raising funds for a referendum and recall effort, to be decided in a special election that would have to be paid for by its proponents. Both insist their legal counsel feels a referendum would be able to overrule a board decision for the contract.
But government law expert Mary-Beth Moylan said she does not see how.
"Really, the referendum is the power to undo the legislation of a government body," said Moylan, who teaches courses on election law at the University of the Pacific McGeorge School of Law and leads the California Initiative Review. "That is what referendum is. I find it unusual to think you could do a referendum against a contract."
Duarte and Smith said StopMIDInsanity.com has decided to target recalls against board president Tom Van Groningen and member Nick Blom.
Van Groningen has said he wants to explore the San Francisco sales as one option for funding canal system upgrades. Blom said he has not made up his mind on the first contract and is skeptical of the larger deal.
Duarte and Smith said Blom's seat was chosen because his district is primarily agricultural and seen as more vulnerable to a recall. Board member Larry Byrd has strongly condemned the deal, but three votes are needed for a board majority.
Van Groningen said he was not surprised to hear there might be a recall effort against him. "Water is such an emotional issue," he said.
A giant windfall for MID
Some people support looking into the sales. They see a windfall that could pay for $115 million in canal upgrades and the MID's estimated $25 million share in obtaining a new hydropower license for Don Pedro Reservoir.
"People paying for water are being subsidized to some extent by electric users," Modesto City Schools board president Ruben Villalobos said.
The school district is the city of Modesto's fourth-largest water user, he noted, paying about $800,000 a year in water fees. The school board has not considered the MID water sale, Villalobos said, adding that maybe it should.
Bee staff writer John Holland can be reached at email@example.com or (209) 578-2385.
Bee staff writer Nan Austin can be reached at firstname.lastname@example.org or (209) 578-2339.
A look at the history predating San Francisco's offer to pay a premium for water from the Modesto Irrigation District:
2008: San Francisco completes a water system improvement plan that includes the option of buying a dry-year supplement of Tuolumne River water from the Modesto or Turlock irrigation districts.
SEPTEMBER 2011: The MID discloses a proposal to sell water to San Francisco; the TID is not involved. The first sale would be 2,240 acre-feet a year, 1.6 percent of the average deliveries to farmers and the treatment plant serving the Modesto area. The parties also propose to study the potential sale of an additional 25,000 acre-feet, to be freed up by conservation projects on MID canals.
OCTOBER 2011: Community meetings draw critics concerned that the sales could leave farmers short in dry years, as well as environmentalists who seek increased river flows.
JAN. 10, 2012: The MID board of directors votes 4-1, with board member Larry Byrd dissenting, to have the district staff complete negotiations on the initial sale.
APRIL 30: The MID releases the draft contract for this sale, with the price starting at $700 per acre-foot, about 70 times what farmers pay this year.
MAY 18: The district cancels a May 22 board vote on the contract so it can be renegotiated to address concerns from Modesto officials and other critics.
JUNE 14: The board vote, which had been rescheduled to June 26, moves to July 10.
JUNE 26: The MID releases the revised contract, which still draws criticism, and sets a vote for July 24.