Court decides against OID for violating CEQA in fallow-for-money scheme

Modesto Bee
OID loses hard-fought fallowing lawsuit
 Garth Stapley
In a key ruling released Monday, a judge slammed the Oakdale Irrigation District for skirting state law in last year’s fallowing proposal.
The district should have studied whether shipping river water elsewhere might harm local groundwater levels, Stanislaus Superior Court Judge Roger Beauchesne said in a decision issued nearly 11 weeks after a one-day trial in January.
“An (environmental impact report) must be prepared whenever there is substantial evidence that significant effects may occur,” the judge ruled, “commanding” OID to reverse its board’s March 2016 vote creating the fallowing program.
The OID board will discuss its options next week, General Manager Steve Knell said in an email. That presumably would occur in closed session and could feature appealing the decision.
Rather than producing a detailed – and more expensive – environmental impact report, the board majority approved what’s called a negative declaration claiming simply that fallowing land and selling freed-up water south of the San Joaquin Delta would have no impact here. Beauchesne criticized that document as “a minimalistic work product which fails to meet the basic requirements of the law.”
The fallowing program never got off the ground, prompted three board members to sue the other two, and figures in the attempted recall of board member Linda Santos scheduled to conclude April 25. Santos and board member Gail Altieri had voted against the negative declaration, saying they had no time to study associated documents provided to them just before the March 2016 vote.
OID had hoped to pay participants 20 percent of sales proceeds in cash; 75 percent would help upgrade equipment, saving water and helping the district comply with state law mandating water conservation, and the district would keep 5 percent.
Knell on Monday called the ruling “unfortunate” and predicted it would “add significant complexity and costs to farmers and irrigation districts on any project they wish to implement that has a potential to cause even the slightest of impacts.”
Beauchesne sided with plaintiffs Robert Frobose, an OID customer, and Louis Brichetto, a former board member, in virtually all of their arguments against the stalled fallowing program, technically known as the On-Farm Water Conservation Program.
For example, OID did not adequately describe current conditions – including groundwater, air quality or animal habitat – making it impossible to judge in the future how fallowing might affect those resources, the judge found.
Someone trying to understand fallowing “would have difficulty” reading OID’s negative declaration, Beauchese found. Although proceeds might have helped pay for land leveling, replacing ditches and old pipelines with new pipes, installing tail-water reuse systems and replacing domestic wells, “the first mention of irrigation projects other than crop conversion appears in the appendix,” the judge wrote. That amounts to “a serious flaw in a supposed attempt to inform the public,” Beauchesne found.
“Each of the criticisms of the negative declaration have merit, in the court’s view,” the judge said.
In February, Knell said an environmental impact report accompanying a standard water transfer can cost as much as $250,000 and take up to 18 months, while a negative declaration might take only a few weeks and cost as little as $2,500.
The judge also criticized OID for insisting in court that fallowing was a one-year pilot project, while Knell was telling others of hopes for a five-year program.
In the January trial, Beauchesne seemed unimpressed when an OID attorney accused Frobose and Brichetto of fighting the district to advance “their own personal interests.” At the time, the judge provided a definition for an ad hominem attack – assaulting someone’s character or motive to deflect attention when you have a weak case.
“Motive need not be proven in a criminal case or in a civil case,” the judge said in his recent ruling, dated April 3. “Either the lawsuit has merit or it does not.”
“We don’t agree with the judge nor his rationale,” Knell said.
Fallowing represents only one avenue for shopping OID water from the Stanislaus River.
The district also has sold surplus water not reserved for customers, allowing OID to invest more than $50 million in upgrades in the past decade. In recent years, the district has chosen to abandon water for buyers to pick up downstream; doing so allows OID to skip environmental review associated with standard water transfers. Santos has criticized abandonments, saying that they weaken the districts’ moral argument for retaining water rights coveted by others.
Knell has said no water will be exported this year because federal officials are worried about the strain already on levees in and near the Delta from high river flows. They are expected to continue through summer as snow melts from record winter storms.
The fallow-for-money idea was set aside in 2015 when Brichetto threatened to sue. At the time, OID attorney Tim O’Laughlin warned that the district likely would lose if the matter ended up in court.
The same idea revived last year – again, without an EIR. Santos and Altieri frowned at the negative declaration but were outvoted by board members Steve Webb, Gary Osmundson and Herman Doornenbal. OID recruited farmers willing to idle 59 plots, but the program stalled when Brichetto sued, joined by Frobose in what they call the Oakdale Groundwater Alliance.
Santos and Altieri provided statements used by plaintiffs, noting that information provided to Santos and Altieri differed from that presented to a judge by an OID attorney. The board majority saw that as treason and sued to keep the women from some closed-door sessions; they missed 14 weeks before a judge ruled against OID, readmitting Santos and Altieri.
Santos’ critics have cited her involvement in the fallowing lawsuit as one reason for the recall. Ballots have been mailed to absentee and mail-only voters making up 69 percent of Division 4; many already are voting. The rest can cast ballots before 8 p.m. April 25 at Life Community Church, 105 E. G St. in Oakdale.
Beauchesne said in his recent ruling that he will decide later, if asked, whether OID will pay attorneys’ fees for Frobose and Brichetto.
Frobose and Brichetto said they were gratified by the ruling.
“We are pleased the court held OID accountable for analyzing and mitigating the impacts associated with selling water for use out of our area,” Brichetto said. “We hope the ruling sends a strong message to the OID board that its actions must comply with state laws designed to protect the environment and local water supplies.”