Sacramento Superior Court Judge Allen Sumner just issued a preliminary ruling that Siskiyou County must regulate groundwater well permits along the Scott River in accordance with “Public Trust Doctrine.” This means the water now mainly used by hay farmers also will have to be divided among commercial sports fishing, kayaking, Indian Tribes and tourist-hotel interests.

The result will be more water shortages as additional political special interests divvy up a limited supply.

The key is the “Public Trust Doctrine,” which was explained in a 1993 report by the California State Lands Commission:

“This Doctrine originated in early Roman law and, as incorporated into English Common law, held that certain resources were available in common to all humankind by ‘natural law.’ Among those common resources were ‘the air, running water, the sea and consequently the shores of the sea.’ Navigable waterways were declared to be ‘common highways, forever free,’ and available to all the people for whatever public uses may be made of those waterways.

“In California, the Public Trust Doctrine historically has referred to the right of the public to use California’s waterways to engage in ‘commerce, navigation, and fisheries.’ More recently, the doctrine has been defined by the courts as providing the public the right to use California’s water resources for: navigation, fisheries, commerce, environmental preservation and recreation; as ecological units for scientific study; as open space; as environments which provide food and habitats for birds and marine life; and as environments which favorably affect the scenery and climate of the area.

“In National Audubon Society v. Superior Court of Alpine County (1983), the California Supreme Court held that the public trust doctrine protects not only navigation, commerce, wildlife and fishing, but also ‘changing public needs of ecological preservation, open space maintenance and scenic and wildlife preservation.'”

Court case

The Siskiyou County court case involves a recent lawsuit brought by the Environmental Law Foundation and the Pacific Coast Federation of Fishermen’s Associations against the State Water Resources Control Board and the County of Siskiyou.  ELF charged that decreased water flows in the Scott River over the past 20 years are due to excessive agricultural extractions of groundwater that flow into the river, which has harmed fish populations and the navigability of the river for recreational rafting and boat fishing. 

The Scott River runs 60 miles in Siskiyou County, located along the northerly state border with Oregon.  The Scott River watershed is 800 square miles.  About two-thirds is privately owned and a third publicly owned.  Forty-five percent is used for forestry, 40 percent for grazing, and only 13 percent for cropland.  The Scott River Groundwater Basin is still the only one in all of California that has surface water and groundwater legally defined as “interconnected” (Water Code 2500.5).

The Scott River watershed was “adjudicated in 1980,” meaning the normal court system for water rights settled local disputes.  The Siskiyou County Superior Court ruled that all groundwater within 500 feet of the river was subject to court monitoring and restrictions on pumping.

The ruling included safeguards for fish, wildlife and natural river flow under the Public Trust Doctrine.  The county issues well drilling permits outside the 500-foot zone, and the court-appointed Watermaster does so within the 500-foot setback.  However, the county court has never appointed a Watermaster to govern well permits along the banks of the river within the 500-foot strip.

Writing in the June 26 issue of the California Water Law Journal, Bryan Barnhart said the ELF suit could have sought enforcement by the state Attorney General or the modification of the Siskiyou County court decree to assign a Watermaster for enforcement.  Instead, the ELF filed its case in a Sacramento County court seeking to expand the Public Trust Doctrine to groundwater for the first time in California.

The Sacramento Court has issued an interim ruling that California groundwater falls within the jurisdiction of the Public Trust Doctrine. For the interim ruling to stand under final court review, ELF would have to prove that the Scott River is navigable and that sufficient groundwater flows into the river for Public Trust purposes to be impaired.  A superior court ruling, however, would not set legal precedent across the entire state.

The Public Trust Doctrine also is supposed to apply only when “feasible.”  Whether the Scott River is navigable would have to be a factual finding of the court, as well as whether the Doctrine is feasible during an historic drought.

Inconsistencies with lawsuit 

Other developments have not deterred the ELF from filing and threatening lawsuits to agricultural irrigation districts both in Siskiyou County and California’s Central Valley asserting that groundwater falls within the Public Trust Doctrine:

• A December 2000 study in the California Agriculture journal found that 80 percent of the decreased water flows over 48 years in the Scott River are due to “climate change.”
• The recently released California Statewide Groundwater Elevation Monitoring study shows Siskiyou groundwater basins are not “Unmonitored.”
• In May 2013, the county and North Coast Regional Water Quality Control Board sponsored a UC Davis hydrologist to develop a groundwater management tool to better manage stream flow conditions in the Scott River.
• Since 2007 the nonprofit Scott River Water Trust has increased river flows by market leasing of farm water during fish migration periods.

Overblown lawsuits? 

ELF has also sent letters to 22 water irrigation districts in the state threatening to sue if they fail to comply with a 2009 law requiring the reporting of the measurement of groundwater basins.

A reply came from Robert Kunde, manager for the Wheeler Ridge-Maricopa Water Storage District in Bakersfield: “We comply with the vast majority of what the law requires.  We just haven’t filed some paperwork to document it.” He said high water prices due to drought are driving water conservation more than the threat of regulation.

Mark Mulkay of the Kern Delta Water District in Bakersfield said his district has been measuring water in order to charge its customers since 1965.

And nine of the purportedly noncompliant districts have already provided verification to ELF that they are following the law.  Where some water districts are too small to be able to afford such paperwork, Ted Trimble of the Western Canal Water District in Oroville is working on creating a regional water plan.

Water Grab? 

If the ELF case prevails in Siskiyou County, it may not be long before such legal challenges are made against adjudicated urban water basins upon which Southern California depends for about 60 percent of its water supplies in a dry year.

The recent $10.5 billion proposed water bond that recently failed in the California Senate included $150 million for projects proximate to “major metropolitan cities for a river that has an adopted revitalization plan” (alluding to the proposed Los Angeles River Revitalization Master Plan).  All such a project needs besides money is more water than the trickle that travels down the concrete-lined flood channels today.  And the only place to get that water is from local groundwater basins.  Water is turning into an elixir for ecological redevelopment projects.

At stake in the Siskiyou County groundwater case — for both rural and urban groundwater users — may be more than a drop in the bucket. Making room for kayaking in the Scott River may also make way for it in the Los Angeles River by diverting drinking water from residential users to kayakers and water-oriented real estate development in a replay of “Chinatown.”

California’s Central Valley groundwater is mainly found in four large subregional basins: the Sacramento Basin, the Delta and Eastside Streams, the the San Joaquin Basin and the Tulare Basin. According to the U.S. Geological Survey, the San Joaquin Basin has recovered from depletion after the State Water Project brought water to farms in the area in the 1970s. But the Tulare Basin still is showing signs of decline.

However, a study by Bridgett R. Scanlon indicates that “water banking” in the Tulare Basin mostly in Kern County has significantly offset losses. She is a researcher at the Jackson School of Geosciences at the University of Texas, Austin.

In he 1995 book, “Water Banks: Untangling the Gordian Knot of Western Water,” Lawrence J. MacDonnell explained:

“Water banking in its most generalized sense is an institutionalized process specifically designed to facilitate the transfer of developed water to new uses.  Broadly speaking, a water bank is an intermediary. Like a broker, it seeks to bring together buyers and sellers.  Unlike a broker, however, it is an institutionalized process with known procedures and with some kind of public sanction for its activities.”

The Kern County Water Bank Authority manages its 32-square mile water bank in the Tulare Basin.  The Water Bank is a giant water recycling system.  The bank has 7,000 acres of recharge ponds and can recharge from 30,000 to 72,000 acre-feet of water per month.  The Kern County Water Bank can hold 10 million acre-feet of water.  The accessible storage is 1.5 million acre-feet.

The bank mainly recycles imported water from the state and federal water systems for recharge. The recovery rate is about 240,000 acre-feet in a year.  Thus, the Bank has about six years of accessible storage.

Green water diversions have created crisis in Ventura County

In 1979, seawater began intruding into freshwater aquifers in the Oxnard Plain in Ventura County. State officials threatened to seek a court order limiting groundwater pumping for the first time in California history. But the Ventura County Board of Supervisors and the Fox Canyon Groundwater Management Agency ignored the regulators and instead financed a $31 million diversion dam to retard seawater intrusion and the problem was solved.

The crisis resurfaced in 2014 with the combination of drought and federal orders to retain more water in the Santa Clara River for Steelhead Trout. More water is now being pumped than is sustainable. This has resulted in less freshwater to hold back the seawater in local groundwater basins.  But groundwater pumping has actually decreased from the 1980s from 160,000 acre-feet of water to 125,000 acre-feet. The sustainable level is thought to be 100,000 acre-feet.

The Safe Yield to pump water set decades ago no longer works when water for fish has to be allowed to flow to the sea instead of into water basins.  The problem becomes even more noticeable when drought compounds the problem.  The groundwater crisis in the Oxnard Plain has been called by WaterWorld.com an “existential crisis” to Ventura’s agricultural industry.

The Fox Canyon Groundwater Management Agency has been proactive in self-management of the water basin. It has required well monitoring, limited construction of new wells and reduced pumping. And it imposed surcharges on pumpers not meeting reduction targets.  But water is viewed as a property right.

Solutions such as building a water desalting plant and using recycled water are being explored. But the problem is the cost of water. Green diversions of water from farmers for fish are causing farming to become economically unsustainable in a globalized world where cheap crops can be imported from Mexico and Chile.

For decades, Ventura farmers have resisted setting up an adjudicated water basin, meaning the longstanding state court system and procedures would decide matters. But they may choose adjudication over regulation by the state. Adjudication typically comes when one agricultural pumper against another files a lawsuit.

Regulating and stigmatizing the “Overdrafters” 

There is a long-term groundwater crisis in the Central Valley, mainly in the Tulare Basin, where water banks have been established to counter the problem.  Groundwater is already managed and monitored where most of the groundwater is extensively pumped.

The long-term crisis is the depletion of the aquifer. But the problem is occurring so slowly that it is not an imminent crisis. The major solutions being discussed to this long crisis are water banking and adding new water reservoirs.

Some other solutions being discussed — such as cleaning up nitrates, perchlorate or other contaminants — would do nothing to recharge the Tulare Basin because that water is already underground. The immediate crisis of small rural towns having no water supply by summer is more difficult and probably too late to fix permanently this year, except by trucking water in. Cleaning up subsurface toxic water would help small towns, but the cost might be prohibitive.

New regulations

The new groundwater regulation apparatus that Gov. Jerry Brown and the Legislature are erecting may end up criminalizing farmers for water overdrafting, even though the problem actually originates in the diversions of water for fish runs. As the Legislative Analyst’s March 11 report on groundwater admits, there is a physical connection between groundwater and surface water.

But the state’s new groundwater laws are based on a flawed depletion hydrology model that doesn’t recognize that farmers are also a source of significant recharge of water basins not solely scofflaw “overdrafters.” But as was described in Part 1 of this series, farmers are also the “rechargers.”

It is going to be interesting to see if the state’s new groundwater regulatory bureaucracy is going to end up limiting the withdrawals of groundwater by farmers that will only result in the greater depletion of groundwater basins for lack of recharge.  And how will regulators measure whether the overdraft came from farming or environmental diversions when it is often all the same water?

Due to the current compound drought and water storage shortage, California legislators are considering enacting groundwater regulation over the entire Central Valley aquifer. Some recent developments:

• State Sen. Fran Pavley, D-Agoura Hills, chairperson of the Water Committee of the California Senate, is considering legislation to do so. Pavley has been floating bills to regulate groundwater since 2009.
• Water expert Peter Gleick has been saying for some time that there is a looming groundwater catastrophe in California.
• In his 2014 State of the State Address, Gov. Jerry Brown called for “serious groundwater management” to crack down on overdrafting.
• The California Legislative Analyst Office on March 11 released a new study, “Improving Management of the State’s Groundwater Resources.” It reported the governor’s budget proposal for fiscal year 2014-15, which begins on July 1, includes $1.9 million for 10 positions to establish a new groundwater policing and regulatory bureaucracy that would begin superseding longstanding state groundwater and property rights laws. 

However, as of 2000, the aquifer had 390 years of remaining water storage left and is depleting at a rate of only 0.25 percent per year, according to a 2012 study conducted under the sponsorship of the National Academy of Sciences. Additionally, the study concluded that nearly the entire threat of depletion is isolated in the Tulare Basin.

The study was headed by  researcher Bridgett R. Scanlon, of the Jackson School of Geosciences at the University of Texas, Austin. The title of the study: “Groundwater Depletion and Sustainability of Irrigation in the U.S. High Plains and Central Valley.”

According to the California Department of Water Resources Groundwater Bulletin No. 118 in 2003, California depends on groundwater to meet about 30 percent of its needs in average years, about 60 percent in wet years.

Adjudicated groundwater

Currently, the California government effectively does not regulate groundwater, leaving regulation to a longstanding adjudication process in state courts. Such adjudicated groundwater basins are examples of self-regulated groundwater management, with the courts acting only as referees. It is unnecessary to regulate or adjudicate many agricultural water basins because farmers have agreed not to draw down underground water levels below a certain pre-agreed depth to avoid depletion that would ruin their farms.

If groundwater basins are not drawn down below their annual safe yield, they will recharge. If they are lowered below the safe yield, they will deplete.  According to Scanlon’s study, California’s Central Valley aquifer is depleting, but at a very slow rate. However, the unintended consequences of diversions of water for fish under pressure from environmental lobbies are resulting in a secondary groundwater depletion crisis.

Scanlon’s study and the State Department of Water Resources estimate the annual overdraft is about 1 million acre-feet of water per year. However, the primary source of recharge of water basins (60 percent) is agricultural irrigation.

But in recent years, the greater percentages of system water being flushed through rivers to the ocean for fish runs means the newest source of groundwater depletion is environmental diversions of water. In 2012 alone, 800,000 acre-feet of Central Valley water was flushed to the sea for fish runs. In 2013, upstream from the Central Valley, 453,000 acre-feet of water was diverted from Trinity Lake for fish flows.

If Brown’s new state regulatory program is instituted, ironically farmers would end up being policed for overdrafting, when actually they are the primary source of recharging basins.

Media misunderstanding of how groundwater works also often portrays farmers as criminals. The Modesto Bee recently reported that the expansion of almond orchards totaling 4 million trees in Stanislaus County would consume enough water for 480,000 people. That would be enough water for the entire City of Fresno for one year.

But the groundwater in Eastern Stanislaus County is not available to be put into the San Joaquin River for statewide municipal use or for fish runs.  Moreover, the California Area of Origin Law would prohibit grabbing water in Stanislaus County for use elsewhere. And shifting orchards to where groundwater is abundant liberates water in the State and Federal water systems for cities and fish.

Groundwater managed, not regulated

Up to now, groundwater has not been regulated, but managed in California. After the passage of Assembly Bill 3030 in 1992 (Water Code Section 10750 et seq.), local agencies were authorized to manage groundwater.  More than 200 agencies adopted groundwater management plans.

The major difference between voluntary local government groundwater management and state regulation is that the state has the power to issue shut-down notices and compel compliance with law enforcement.  A local groundwater management agency is able to monitor wells and issue surcharges on pumping too much water, but it can’t stop a landowner with water rights from pumping water.

And there still are some areas of the state that have not adopted such management plans.  Liability issues, the high cost of adjudicating water basins, the ability of farmers to self-manage groundwater levels, the complexities of existing water rights, and the lack of legal conflicts over local groundwater usage have made groundwater regulation unnecessary in many areas. Groundwater is not generally monitored in some 200 water basins where the population is sparse and groundwater withdrawals are typically low.

The DWR reports that groundwater is already monitored in 10,000 active water wells where the water is mostly used.

DWR recently implemented a new groundwater surveillance mechanism, the California Statewide Groundwater Elevation Monitoring in 2012, in accordance with State Senate Bill SB-X7-6 of 2009.  This report is provided every 5 years to the legislature.

(In Part 2 of this series, the hydrological flaws and consequences of a potential new green groundwater regulatory plan will be discussed.)