Courts and state water board curb Stanislaus County farmers' water use
California farmers are laboring under a daunting edict: They must stop over-pumping groundwater from beneath their ranches. The saving grace is that state law gives them more than 20 years to do it.
For the first time, a California court has said state and county governments have a duty to regulate groundwater usage when it’s clear that the pumping drains water from adjacent rivers.
Now, however, a landmark court ruling could force many farmers to curb their groundwater consumption much sooner than that, landing like a bombshell in the contentious world of California water. -- Kasler, Sacramento Bee, Sept. 19, 2018.
Wayne Zipser, executive director of Stanislaus County Farm Bureau, said a victory for the plaintiffs would be terribly burdensome for land owners. “Our position is a land owner has the right to the water underneath his or her property,” Zipser said. “Farming is a beneficial use. To require environmental review on every single well is ridiculous.” -- Carlson, Modesto Bee, Sept. 22, 2018
An additional obstacle to the unfettered right to pump water under a farm arose last month in the California Appellate Court, Third Division, when the court decided, in the Environmental Law Foundation v. Siskiyou County, that wells that deplete rivers violate the Public Trust.
Stanislaus County, bordered by two major rivers, a third crossing it east-to-west, and a fourth meandering north to the Delta, will feel the weight of this decision, not just on new wells, but on existing wells.
While farmer-stakeholders drag out the Sustainable Groundwater Managment Act committees to their fully allotted 20 years of additional depletion of the groundwater basins, people concerned with the quantity and quality of groundwater and surface water in their areas now have two tools to challenge Mr. Zipser's political theory in court: the Public Trust Doctrine and the California Environmental Quality Act.
The surface water quantity in Stanislaus County is being made worse by the state water board's desire to take 40 percent of the winter flow of each of the east/west tributaries, the Stanislaus, Tuolumne and Merced, and add it to the San Joaquin to flow into the Delta to replace water that the twin tunnels project will pipe around and under the Delta to the California Aqueduct to be sent south.
Stanislaus County farmers and their politicians seem to have been muscled out of the water decision making process in this current round, known as the WaterFix.
-- blj
9-22-18
Modesto Bee
Stanislaus County appeals ruling that would make it harder for farmers to dig wells
By Ken Carlson
https://www.modbee.com/news/article218804095.html
Stanislaus County will ask the state Supreme Court for a ruling on whether environmental review is a necessary step for a new water well.
In August, a state appeals court overturned the Stanislaus Superior Court’s decision in the Protecting Our Water lawsuit, which sought an injunction against county well permit approvals. The plaintiffs claimed the county was violating the California Environmental Quality Act (CEQA) in approving well permits without considering environmental harm.
Modesto-area farmers are already facing future cuts to water deliveries from a State Water Board plan to leave more water in rivers for fish. They will have a difficult time with sinking new wells for irrigation if the 5th District Court of Appeal decision stands, county officials said.
An environmental review is costly. It can take two years and may be challenged by litigation. County leaders voted in closed session Tuesday to prepare a petition asking the state’s highest court to hear the case. There is no guarantee it will.
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“Our best hope is we will prevail,” County Counsel John Doering said. “It does not make sense to conduct (an environmental review) on these types of projects. ... We think other counties also are worried about this decision.”
The original lawsuit was filed in January 2014, during the last drought, after hundreds of county permits had been issued for agricultural wells in Stanislaus County and had sparked concern about the health of aquifers. The plaintiffs included Protecting Our Water and Environmental Resources and the California Sportfishing Protection Alliance.
A second suit targeting more than a dozen growers who had drilled irrigation wells was settled out of court.
In a 2015 decision, Superior Court Judge Roger Beauchesne ruled against the plaintiffs in the first case but chose to monitor the county’s well permitting and drilling data for a year. The plaintiffs appealed to the state appellate court in Fresno, which heard the case and issued a ruling in August.
The 5th District court acknowledged that an environmental review for most well permits is a costly, time-consuming process that might prove unnecessary. But courts are not able to change the regulations in CEQA, the judges said.
“If we were legislators, we might seek a way to provide relief from the potentially high burdens imposed by CEQA. But we are judges, not legislators. The choice is not ours to make,” the court ruling said.
According to the appellate court, discretionary decisions by local government are what trigger an environmental review under the law. Since the county makes a judgment on whether there’s adequate space between a new well and source of contamination, the permitting process is discretionary under CEQA, the court ruled.
Protecting Our Water was created by plaintiff Jerry Cadagan of Sonora, who died in an apparent suicide three years ago. San Francisco Attorney Thomas Lippe represents the remaining plaintiffs.
“I wish the county would just do the right thing,” Lippe said Friday. “The reality is the well permits that get environmental review are the ones where people see a problem and submit comments. That opportunity should be there. It is opening the door for people to have some involvement in the process.”
Wayne Zipser, executive director of Stanislaus County Farm Bureau, said a victory for the plaintiffs would be terribly burdensome for land owners. “Our position is a land owner has the right to the water underneath his or her property,” Zipser said. “Farming is a beneficial use. To require environmental review on every single well is ridiculous.”
Zipser noted that a state law, signed by Gov. Jerry Brown nine months after the suit was filed, requires local agencies to work on sustainable management of groundwater, and that should address concerns about overdrafting.
The county approved an ordinance in November 2014 to prohibit excessive groundwater pumping. Those regulations on groundwater mining apply outside the boundaries of irrigation districts.
The county has issued well permits for years and does not simply hand them out, Doering said. Guidelines make sure wells are built and sealed properly. Well sites close to a septic system or dairy lagoon are not permitted.
In a similar case in San Luis Obispo County, the 2nd District Court of Appeal ruled the opposite — that environmental reviews are not necessary for well permits. Plaintiffs in that lawsuit also have petitioned the Supreme Court.
Doering said an attempt to consolidate the two cases was not successful. Stanislaus expects to file its petition for Supreme Court review within one or two weeks.
9-17-18
Sacramento Bee
Farmers thought they had 20 years to use groundwater as they wished - maybe not anymore
BY DALE KASLER
https://www.sacbee.com/news/state/california/water-and-drought/article21...
California farmers are laboring under a daunting edict: They must stop over-pumping groundwater from beneath their ranches. The saving grace is that state law gives them more than 20 years to do it.
Now, however, a landmark court ruling could force many farmers to curb their groundwater consumption much sooner than that, landing like a bombshell in the contentious world of California water.
For the first time, a California court has said state and county governments have a duty to regulate groundwater usage when it’s clear that the pumping drains water from adjacent rivers.
“This is going to be an immediate obligation, not one that they can wait 20 years,” said James Wheaton of the Environmental Law Foundation, an Oakland nonprofit that won the lawsuit. “They’re going to have to act now.”
The Aug. 29 ruling by the Third District Court of Appeal involves the Scott River in Siskiyou County, an obscure 60-mile tributary of the Klamath near the Oregon border that suddenly looms as a major artery in California water law. Wheaton said the ramifications go far beyond Siskiyou’s borders.
“This ruling applies statewide,” he said.
The court case spotlighted the often overlooked connection between rivers and aquifers. Rivers aren’t just fed by rainwater and melting snow; they also depend on groundwater. Richard Frank, a UC Davis law professor who worked on the lawsuit, said farmers in the vicinity of the Scott pump so much groundwater that portions of the river go nearly dry during the summer. That has had a devastating effect on fish populations, including the endangered coho salmon.
“That’s jobs and dollars and our livelihood,” said Glen Spain, a lawyer who worked on the case and regional director of the Pacific Coast Federation of Fishermen’s Associations. “If you’re a fish, a dried-up river is death.”
Ironically, the ruling would probably have the least impact in parched regions like the San Joaquin Valley, where aquifers already have been drained so badly that they no longer feed the rivers, said Brian Gray, a water-law expert at the Public Policy Institute of California.
The court established a broad, general principle – essentially, that groundwater pumping that harms rivers violates California law, and Siskiyou County officials must take that into account when they allow new wells to be drilled. Additional court cases or other actions would be needed to establish hard-and-fast rules on what’s permissible, Wheaton said. He said the Environmental Law Group hasn’t decided which steps to take.
“Is this going to change anybody’s pumping next year? Not to my knowledge,” said Chris Scheuring, general counsel at the California Farm Bureau Federation.
But the ruling could eventually have an effect in plenty of places. Ellen Hanak, a water-policy expert at PPIC, said groundwater pumping by wine grape growers has been shown to reduce flows significantly on the Russian River, for example. In one case, a decade ago, the river ran so low that endangered salmon were left to die on the river banks, prompting regulations requiring farmers on the Russian to coordinate their pumping activities to keep flows high enough.
Last month’s court ruling could eventually bring far stricter restrictions. The Farm Bureau was concerned enough that it argued in court against the ruling.
Restricting groundwater pumping “could have a significant negative economic impact on many landowners, and frustrate long-existing, investment-backed expectations to a water right that has never before been so limited,” the Farm Bureau’s lawyers wrote in a legal brief with the Pacific Legal Foundation, a property-rights nonprofit in Sacramento.
Groundwater is California’s lifeline, particularly in agriculture. According to the Public Policy Institute of California, aquifers generate about 40 percent of the water used by farms and cities. In lean times, it gets worse. During the recent five-year drought, farmers drilled thousands of new groundwater wells and extracted as much as 8.4 million acre-feet of water out of the aquifers each year, according to a UC Davis study. An acre-foot is about 326,000 gallons.
Alarmed about falling water tables and other consequences, the Legislature acted in 2014 to rein in groundwater consumption. The Sustainable Groundwater Management Act will require “critically over-drafted” groundwater basins to come into balance – meaning farmers will have to put as much into the basin as they take out – by 2040. The groundwater basins in better shape have until 2042 to become sustainable. Generally speaking, “sustainable” means the basins are in no worse shape than they were in January 2015.
Regional agencies are in charge of developing the sustainability plans, and state officials who oversee SGMA say last month’s court ruling won’t change that. The decision “does not interrupt DWR’s implementation of SGMA nor uproot development of groundwater sustainability plans by local agencies,” said Joyia Emard, a spokeswoman for the Department of Water Resources, in an email.
Even with two decades-plus of lead time, farm advocates say SGMA will likely force the permanent retirement of hundreds of thousands of acres of farmland. Environmentalists, however, say the Scott River can’t wait for the law’s deadlines to kick in.
In its lawsuit, the Environmental Law Foundation cited a legal doctrine known as “the public trust.” It’s a powerful doctrine, rooted in ancient Roman law, and says the state and county governments have the duty to protect public resources such as water. The public trust doctrine was the basis for one of the most important legal decisions in California water history – the state Supreme Court’s 1983 ruling that gave broad protections to Mono Lake on the eastern slope of the Sierra. That ruling prompted state regulators several years later to significantly curtail the city of Los Angeles’ ability to draw water from the lake.
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Now the concept is being applied to groundwater pumping and the impact it has on the state’s rivers. “If you pump out the groundwater and deplete the river, you potentially violate the public trust,” said the PPIC’s Gray.
In the lawsuit, Siskiyou County officials said there was already a law in place to rein in pumping operations – the SGMA groundwater law – which overrides the public trust issue. The court flatly rejected that argument. Siskiyou County’s attorneys couldn’t be reached for comment for this story.
Wheaton said he doesn’t want to use the ruling to hurt farmers, who he said have suffered plenty in recent years. But he said the rivers have to be protected, and soon.
With the ruling, “we have a very powerful tool,” the environmental lawyer said. “We want to wield it in a way that’s responsible but effective.”
8-15-18
Modesto Bee
State water board won’t vote next week on controversial river flow plan
By Ken Carlson
https://www.modbee.com/news/article216775485.html
The State Water Board is making it clear that it won’t vote next week on a much-disputed proposal to require higher river flows for improving water quality in the Sacramento-San Joaquin river delta.
Felicia Marcus, who chairs the water board, said in a letter Wednesday to the California Natural Resources Agency that final action will be taken at a board meeting later.
Hearings Tuesday and Wednesday in Sacramento are still set for considering comments on the final amendments to the Bay-Delta plan, which would require dams in the Sierra to release 40 percent of flows in the Tuolumne, Stanislaus and Merced rivers from February through June to help young salmon swim downstream to the ocean.
In her letter Wednesday to state Natural Resources Secretary John Laird, Marcus said Tuesday’s hearing will provide the final opportunity for comment on the proposed action. Leaders in Stanislaus County, who strongly oppose the plan, had heard rumors the board would postpone action on the river flow requirements.
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Marcus has said the state agency wants to see negotiated agreements with local irrigation districts for increased river flows and other measures to assist devastated native fish populations including salmon. “Board members and staff have repeatedly emphasized that voluntary settlement agreements can provide a faster, more durable solution to reasonably protect beneficial uses in the lower San Joaquin River and its tributaries,” Marcus wrote.
The board recognizes the importance of river flows, combined with “nonflow actions” to improve the fisheries, Marcus’ letter said. The state’s Natural Resources Agency is supposed to play a role in talks with local irrigation districts, which hold historic water rights on the rivers and claim the flow requirements will have devastating economic effects on the region.
Vito Chiesa, a Stanislaus County supervisor, said the state board has ignored the findings of scientific studies commissioned by Modesto and Turlock irrigation districts on salmon migration in the Tuolumne River. Those studies arrive at conclusions that differ from biological studies supporting greater river flows as the primary solution. The districts have recommended steps to reduce nonnative fish that feed on young salmon.
Representatives from MID, TID and other irrigation districts are expected to speak at the hearings next week.