Author Archives: Francine

Interview with Michael Jackson, water rights attorney

9.10.14: Click link below to hear AquAlliance water policy analyst Jim Brobeck’s interview with California water rights lawyer Michael Jackson.

Jackson represents the California Sportfishing Protection Alliance (CSPA) and the California Water Impact Network (C-WIN). He serves on the steering committee of the Cal Environmental Water Caucus. His broad attorney duties have placed Michael Jackson in court cases concerning the Colorado River, Santa Ynez River, Carmel River and many other cases in Central Valley and SF Bay Delta.

Brobeck and Jackson discussed the history of the Sacramento/San Joaquin Watersheds, Gov. Brown’s Twin Tunnels project, The 2014 California Water Bond and how these far-flung water schemes impact Northern Sacramento Valley groundwater.

CLICK HERE to hear Michael Jackson interview 9.10.14

Editorial: Water law takes a new and scary turn

9.7.14: Chico Enterprise-Record

The package of bills passed by the Legislature Aug. 29 to regulate California groundwater usage were called the biggest change in water law in our lifetimes by Butte County’s top water official. And there’s not a bit of hyperbole in that.

What the state did is assume authority over the water beneath our feet. It assumed authority over the water beneath your property, if you’re a landowner.

It’s the first time that’s happened in California. The feds have always asserted control over surface water, but whatever was underground — oil, minerals, water — was solely the concern of the person who owned that bit of the Earth’s surface above.

Sure, Gov. Brown still has to sign the legislation, but there’s no one who thinks that won’t happen. There are likely to be a flurry of lawsuits over government taking a private resource without compensation, but California isn’t breaking new ground here. Groundwater regulation is the rule rather than the exception throughout the West, and it’s almost curious regulation- drunk California hasn’t gotten to it sooner. The law will be upheld.

And it’s really hard to argue that it isn’t necessary. It’s unfortunate, because it’s one of those laws that says, “don’t do something stupid that harms your neighbors.” Such laws are necessary because people get stupid (well, greedy) and do things that harm their neighbors.

The particular act of stupidity that prompted this legislation is overdrafting, which is sucking up more groundwater than the land can provide.

It’s stupid, because it drops the water table, forcing deeper and deeper wells. Aquifers don’t stop at property lines, so every moron who pumps too much impacts his neighbors’ wells too. And overdrafting can lead to compaction of the soil that makes it pretty much sterile to all but the hardiest weeds.

It’s not a huge problem up here, where the ag economy is based on family farms that have generations on the ground and an eye to the family’s heritage, as well as long-term cooperative relationships with their neighbors who see things in a similar way. Farmers here aren’t going to hurt their family’s future, or their neighbors and friends There are plenty of farmers like that in the San Joaquin Valley too, but corporate farms are more common. There, concern for a family’s legacy is replaced by maximizing the profits of stockholders. Stupid things are done, like planting higher-value crops like almonds that require a reliable water supply, even though there is no reliable water supply.

Well, there is a reliable water supply, if you have deep enough pockets to drill ever deeper, and don’t care about your neighbors who can’t keep up in the race to reach the center of the earth, and ultimately will see their farms turn to dust.

That’s happening, and that’s why these bills were passed. And that’s why it’s hard to argue with the legislation. That doesn’t mean we shouldn’t be afraid of it.

The state of California, which doesn’t have a record for gentle or even reasonable enforcement of its regulatory authority, is taking charge of yet another resource, and the most crucial one of all. Once the water beneath the ground becomes the state’s water, it can limit private abuses, but it can also foster public abuses. If it can say someone is using too much, it can also say someone is hoarding too much and it needs to share.

We’d be the hoarders, folks.

It’s unclear what will happen, because the law is, unsurprisingly, incredibly vague. The law says the bureaucracy will figure it out over the next few years. No one has to submit a groundwater management plan until 2020 (we here get a couple of extra years), and no one knows what the plan must include to past state muster. They’ll let us know. Sometime. They’ll let us know when.

It’s hard to imagine how there could be a bigger change in water law in our lifetime. And it’s hard to imagine how there could be a scarier one.

Legislature Acts: New rules set for groundwater

Locals will be required to manage groundwater, and if not the state steps in

By Heather Hacking, Chico Enterprise-Record
hhacking@chicoer.com @HeatherHacking on Twitter

8.30.14: SACRAMENTO >> The wild west of groundwater law is about to change in California.

Friday the Legislature passed AB1739, which works with SB1168 to begin groundwater management. The goal is for statewide sustainable groundwater use within 20 years, balancing economic, social and environmental benefits.

“We will probably see nothing bigger in our lifetime for changes to water law,” said Paul Gosselin, director of the Butte County Department of Water and Resource Management.

The laws allow for local control. Yet, the big change is that the state can step in if local groundwater management isn’t working, or if the state determines local groundwater management isn’t working.

For Butte County, a sustainability plan needs to be in place by 2022. Areas elsewhere with critical overdraft will need a plan two years earlier.

The earliest deadline is two years from now, when each sub- basin identified by the state needs to declare who will run the groundwater plans.

Currently groundwater is not regulated on a statewide basis. Generally, property owners have a right to pump groundwater for beneficial use.

In some areas of the state, groundwater levels have dropped over the past many decades, long before the current drought.

Depleted groundwater can lead to land subsidence, where the soil loses its ability to store water in the future. Subsidence can also harm infrastructure such as roads, canals and established structures.

Currently, local monitoring is done for land subsidence, and none has been detected.

The devastating drought the past three years has brought groundwater use to the forefront, as cities and farms are pumping groundwater at high rates when surface water supplies have been cut dramatically.

AB1739 author Assemblyman Roger Dickinson, D Sacramento, speaking before the vote Friday, said all legislators know groundwater is being over- drafted. “The question is not what happens if we act. The question is what are the consequences if we fail to act.”

Gosselin said the county already has much of the work done to fulfill the state’s request for a management plan. Plus, individual water districts have their own groundwater management plans. Within two years, locals will decide who will submit plans to the state to meet the new requirements.

“Most of it is no different than what we are working on now,” Gosselin said.

However, “there is a whole set of issues,” including reporting to the state and whether the state thinks the local plans are good enough.

One unresolved concern, Gosselin said, is that the state could step in if there is stream depletion linked to groundwater pumping.

Thad Bettner, manager of Glenn-Colusa Irrigation District, agreed. Stream depletion could be interpreted broadly. Also there is distrust as to what the state might do in the future with these rules on the books.

“Given the history of the state (Water Resources Control Board), there’s distrust that the board will act prematurely” and step in without giving locals a chance to fix problems, Bettner said.

“This bill recognizes existing water rights, period, end of discussion,” Dickinson said Friday before the assembly vote.

“This bill is built on local control,” he continued.

However, Bettner said water leaders have seen “again and again where the state board has threatened to step in and not let us” manage locally.

The biggest change is the unknowns, Gosselin concurred. What’s also new is the state having the ability to step in if local plans aren’t accepted.

At the very least, local water leaders will need to conform with the yet-to-be determined state guidelines.

The state also isn’t offering to fund the local plans, Bettner said, which means locals would pick up the costs.

The package of bills allows local agencies to assess fees for groundwater management.

Gosselin said he believes the work can be done without new fees. However he doesn’t know what the rules will be and how much work they will include.

“Are they going to be reasonable and flexible or are they going to want things unnecessary and costly?” Gosselin said.

“This will be a huge change in water management unlike anything that has happened before,” Gosselin concluded. “The future will be different.”

Local votes
Assemblyman Dan Logue, R-Loma Rica, and state Senator Jim Nielsen, R- Gerber, both voted against the bills.

Logue, reached after the vote, said he considers the rules a “ taking of water rights.”

Butte County is managing its groundwater, Logue said.

“Why go into Butte County and put criteria on them … to set up these agencies where they are not needed?”

Some areas of the state, including Tulare County, do have serious groundwater depletion problems, Logue said. That’s where the focus should be, not statewide.

The assemblyman said he’s also worried the rules will add costs for groundwater users. Sen. Nielsen also stated strong concerns in a press release.

“Newly created and existing government agencies will be granted enforcement powers to inspect, with or without landowners’ consent, the property or pump to ensure compliance. If the State Water Resources Control Board deems that local agencies failed to comply and/ or enforce restrictive regulations, then the state intervenes with its excessive powers to impose fees and fines.”

Contact reporter Heather Hacking at 896-7758.

California officials delay massive Delta water tunnel project

Delta waterExcellent news for the Northstate! The blistering comments attacking the environmental review for the Bay Delta Conservation Plan (BDCP) have forced the California Department of Water Resources (DWR) to regroup and delay approvals for building the massive Twin Tunnels and extracting the water to fill them from our region. DWR saw they would lose badly in court, so they plan to recirculate parts of the environmental review after they attempt to repair the gaping holes in their analysis.

Our comments attack DWR’s failure to disclose that:

  • increased water transfers would occur with BDCP
  • the groundwater in the Sacramento Valley is already strained
  • the geology of the region includes the important Cascade Mountain Range (something they seem not to know)
  • and more

Our expert’s comments describe the complete inadequacy of the models used for the BDCP analysis.

Please click a link for:

Colorado River Basin groundwater loss poses threat to western US water supply

The Colorado River Basin lost nearly 53 million acre feet of freshwater over the past nine years, according to a new study based on data from NASA’s GRACE mission.  The new study by NASA and University of California, Irvine, scientists finds more than 75 percent of the water loss in the drought-stricken Colorado River Basin since late 2004 came from underground resources. The extent of groundwater loss may pose a greater threat to the water supply of the western United States than previously thought.
View reports:

AquAlliance Billboard on Highway 99!

BillboardCheck it out! AquAlliance has its first Billboard 2billboard and it may be seen on the west side of Hwy 99 south of the Hwy 149 interchange before the rice fields. Thanks so much to the generosity of Linda and Gary Cole for hosting it and our team for assembling it!

 

Lawsuit Produces Desired Outcome

NewsAquAlliance sued the U.S. Bureau of Reclamation again over their inadequate environmental review of the Bureau’s ‘temporary,’ North-to-South water transfers that take place year-after-year. While we lost the injunction that sought to halt the transfers,* AquAlliance and our litigation partner, the California Sportfishing Protection Alliance (CSPA), achieved the major goal of the lawsuit: the ‘temporary’ water transfers will be folded into a larger plan that must disclose more fully how the communities, economy, and the environment in the NorthState and Delta may be harmed.

The Bureau started this process after AquAlliance sued it before in 2010 (” 10-year water grab moves forward“) but they shunted it aside over the last three years in favor of their ‘temporary’ annual transfers that were easier and allowed them to avoid comprehensive review of environmental impacts. This time, the Bureau had to declare under oath that it will issue a Draft Environmental Impact Statement for a 10-year transfer program in September of 2014. This is also affirmed on the Bureau of Reclamation website.

With this win in hand, AquAlliance must prepare for the analysis that will be necessary to defend this region from the 10-year, 600,000 acre-feet per year water transfer program. If that amount of water is transferred over 10 years, it is equivalent to what a city of 100,000 people would use in 200 years!!!  Since the Bureau swore in court to stop the one-year, so-called ‘temporary’ transfers, we will dismiss the current lawsuit to turn all our resources and attention to the 10-year transfer program and Defending Northern California Waters with our attorneys and experts.

Background

If you want a reminder regarding who wants our water, here it is again.For decades, wealthy, politically connected water districts south of the Delta have wanted groundwater in the Tuscan Aquifer underneath Butte, Glenn, and Tehama counties. They have already destroyed the abundant natural bounty of South-state watersheds by irrigating marginal lands, transferring massive amounts of water, and excessive ground water pumping. Remember the Owens Valley and Mono Lake? If you follow the money behind this transfer project, you will find desert agriculture south of the Delta with junior water rights (i.e. last in line) pressing to abscond with more NorthState water for private profit.

The Bureau’s depiction of the 10-year, 600,000 acre-feet per year water transfer program is most accurately portrayed in the Federal Register Notice.

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*AquAlliance and CSPA hoped that we could stop the transfers with  an injunction and expert analysis that illustrated that the small Delta smelt, that are on the verge of extinction, were going to be hammered by the transfers that would move them into hazardously warm water and toward the fish-eating export pumps. Unfortunately, Judge Lawrence O’Neill of the federal district court in Fresno denied the preliminary injunction to stop the federal 2014 water transfers from the Sacramento Valley. Courts routinely do this since they like to believe that the agencies are more expert than outside professionals. His deference to the U.S. Bureau of Reclamation and the U.S. Fish and Wildlife Service will quite possibly bring the Delta smelt, the subject of the preliminary injunction, to extinction. 

Water Transfer Injunction Denied

Deference to Federal Agencies Prevails…

Judge Lawrence O’Neill of the federal district court in Fresno denied the preliminary injunction sought by AquAlliance and the California Sportfishing Protection Alliance to stop the federal 2014 water transfers from the Sacramento Valley. His deference to the U.S. Bureau of Reclamation (Bureau) and the U.S. Fish and Wildlife Service will quite possibly bring the Delta smelt, the subject of the preliminary injunction, to extinction. Courts routinely do this since they like to believe that the agencies are more expert than the public. Clearly it creates a high bar for public interests to meet even with expert testimony that supports the legal challenge and it ignores repeated failures by agencies. Unless there are significant environmental changes to the conditions in the area of origin or the Delta that could be brought back to the court for reconsideration, the transfers will move forward.

Arguing the full merits of the case, which covers the failure by the Bureau to analyze the impacts to NorthState groundwater, streams, farms, communities, and businesses, is still possible. The lawsuit seeks to prevent the harm to this region that has already occurred from transfers of river water and the over-extraction of groundwater in the San Joaquin and Owens valleys.

View CSPA Press Release (14 July 2014)

In dry California, water fetching record prices

7.2.14 – SF Gate by Garance Burke, Associated Press

 

In this May 1, 2014 photo, irrigation water runs along a dried-up ditch between rice farms in Richvale, CA.

In this May 1, 2014 photo, irrigation water runs along a dried-up ditch between rice farms in Richvale, CA.

Throughout California’s desperately dry Central Valley, those with water to spare are cashing in.

As a third parched summer forces farmers to fallow fields and lay off workers, two water districts and a pair of landowners in the heart of the state’s farmland are making millions of dollars by auctioning off their private caches.

Nearly 40 others also are seeking to sell their surplus water this year, according to state and federal records.

Economists say it’s been decades since the water market has been this hot. In the last five years alone, the price has grown tenfold to as much as $2,200 an acre-foot — enough to cover a football field with a foot of water.

Unlike the previous drought in 2009, the state has been hands-off, letting the market set the price even though severe shortages prompted a statewide drought emergency declaration this year.

The price spike comes after repeated calls from scientists that global warming will worsen droughts and increase the cost of maintaining California’s strained water supply systems.

Some water economists have called for more regulations to keep aquifers from being depleted and ensure the market is not subject to manipulation such as that seen in the energy crisis of summer 2001, when the state was besieged by rolling blackouts.

“If you have a really scarce natural resource that the state’s economy depends on, it would be nice to have it run efficiently and transparently,” said Richard Howitt, professor emeritus at the University of California, Davis.

Private water sales are becoming more common in states that have been hit by drought, including Texas and Colorado.

In California, the sellers include those who hold claims on water that date back a century, private firms who are extracting groundwater and landowners who stored water when it was plentiful in underground caverns known as water banks.

“This year the market is unbelievable,” said Thomas Greci, the general manager of the Madera Irrigation District, which recently made nearly $7 million from selling about 3,200 acre-feet. “And this is a way to pay our bills.”

All of the district’s water went to farms; the city of Santa Barbara, which has its own water shortages, was outbid.

The prices are so high in some rural pockets that water auctions have become a spectacle.

One agricultural water district amid the almond orchards and derrick fields northwest of Bakersfield recently announced it would sell off extra water it acquired through a more than century-old right to use flows from the Kern River.

Local TV crews and journalists flocked to the district’s office in February to watch as manager Maurice Etchechury unveiled bids enclosed in about 50 sealed envelopes before the cameras.

“Now everyone’s mad at me saying I increased the price of water. I didn’t do it, the weather did it,” said Etchechury, who manages the Buena Vista Water Storage District, which netted about $13.5 million from the auction of 12,000 acre-feet of water.

Competition for water in California is heightened by the state’s geography: The north has the water resources but the biggest water consumers are to the south, including most of the country’s produce crops.

The amount shipped south through a network of pumps, pipes and aqueducts is limited by the drought and legal restrictions on pumping to save a threatened fish.

During the last drought, the state Department of Water Resources ran a drought water bank, which helped broker deals between those who were short of water and those who had plenty. But several environmental groups sued, alleging the state failed to comply with the California Environmental Quality Act in approving the sales, and won.

This year, the state is standing aside, saying buyers and sellers have not asked for the state’s help. “We think that buyers and sellers can negotiate their own deals better than the state,” said Nancy Quan, a supervising engineer with the department.

Quan’s department, the U.S. Bureau of Reclamation and the State Water Resources Control Board have tracked at least 38 separate sales this year, but the agencies are not aware of all sales, nor do they keep track of the price of water sold, officials said.

The maximum volume that could change hands through the 38 transactions is 730,323 acre-feet, which is about 25 percent of what the State Water Project has delivered to farms and cities in an average year in the last decade.

That figure still doesn’t include the many private water sales that do not require any use of government-run pipes or canals, including the three chronicled by the AP. It’s not clear however how much of this water will be sold via auctions.

Some of those in the best position to sell water this year have been able to store their excess supplies in underground banks, a tool widely embraced in the West for making water supplies reliable and marketable. The area surrounding Bakersfield is home to some of the country’s largest water banks.

The drought is so severe that aggressive pumping of the banked supplies may cause some wells to run dry by year’s end, said Eric Averett, general manager the Rosedale Rio Bravo District, located next to several of the state’s largest underground caches.

Farther north in the long, flat Central Valley, others are drilling new wells to sell off groundwater.

A water district board in Stanislaus County approved a pilot project this month to buy up to 26,000 acre-feet of groundwater pumped over two years from 14 wells on two landowners’ parcels in neighboring Merced County.

Since the district is getting no water from the federal government this year, the extra water will let farmers keep their trees alive, said Anthea Hansen, general manager of the arid Del Puerto Water District.

Hansen estimated growers would ultimately pay $775 to $980 an acre-foot — a total of roughly $20 million to $25.5 million.

“We have to try to keep them alive,” Hansen said. “It’s too much loss in the investment and the local economy to not try.”

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Read article at www.sfgate.com

Lawsuit Filed to Protect North State Farms, Fish and Communities


News ReleaseClick to view:

On 10 June 2014, AquAlliance and the California Sportfishing Protection Alliance (CSPA) filed a lawsuit in federal District Court against the U.S. Bureau of Reclamation USBR over its inadequate disclosure, avoidance of impacts, and mitigation of major water transfers from the Sacramento Valley through the Delta to the San Joaquin Valley. USBR proposes to transfer up to 175,226 acre-feet (AF) of Central Valley Project (CVP) surface water to San Luis Delta Mendota Water Authority (SLDMWA). As much as 116,383 AF of that water may be in the form of groundwater substitution. Coinciding with the USBR transfer, the State Water Project (SWP) and private parties are proposing to transfer another possible 305,907 AF or more of water. The lawsuit asks the court to declare that USBR’s Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) was arbitrary and capricious, ignored relevant new information and failed to meet minimum requirements of the National Environmental Policy Act (NEPA).

Depleting already stressed aquifers so that special interests can sell and export their surface water to the San Joaquin Valley directly threatens the environment, human health and economic wellbeing of the communities, businesses, and farms of the Sacramento Valley. Exporting massive quantities of water during periods of negligible Delta outflow draws the low salinity zone into the central Delta and exposes endangered delta smelt to lethal temperatures and entrainment in Delta pumps. This is especially critical as Delta flow and water quality standards have been weakened six times in less than 90 days and plaintiffs have discovered that state and federal agencies are grossly overestimating actual Delta outflows. USBR refused to consider the new information and revise the EA and FONSI.

AquAlliance Executive Director Barbara Vlamis explained, “Selling surface water and pumping groundwater places an extraordinary strain on the groundwater basins and streams of the North State that are already taxed by the very dry conditions, past transfers, and local agricultural demand. For years, USBR has relied upon quick-&-dirty Environmental Assessments and Findings of No Significant Impact instead of the required and long-promised full Environmental Impact Statement that would fully examine the adverse impacts of water transfers on the area of origin and Delta. It’s past time for USBR to comply with the law and factually analyze the enormous impacts caused by their water transfers to agricultural interests with junior water rights that chose to plant permanent crops in a desert.”

CSPA Executive Director Bill Jennings observed, “Last year, excessive water exports and low outflow drew delta smelt from Suisun Bay into the central Delta where they were butchered by lethal water temperatures. This year, with population levels hovering at historic lows: excessive transfers and exports, relaxed flow standards, high temperatures and negligible outflows may catapult the species into the abyss of extinction. On top of these threats, we were astonished to discover that the estimates of Delta outflow that state and federal agencies have reported and regulators have relied upon for years are wrong and significantly overestimate outflow in low flow conditions. Indeed, last month there was actually a minus 45 cfs net outflow to the Bay while DWR and USBR were reporting a plus 3805 cfs.”

The Net Delta Outflow Index (NDOI) used to assess compliance with required flow standards is based upon a formula of both actual and estimated data. Examination of tidally filtered outflow data from the U.S. Geological Survey’s state-of-the-art UVM flow meters on the Sacramento and San Joaquin Rivers and Three-mile and Dutch Sloughs reveals that actual Net Delta Outflow (NDO) in low flow conditions are considerably lower. These USGS sites capture all outflows from the Delta to the Bay. Incredibly, the state’s own evaluation of NDO with the NDOI, as reported on DWR’s Dayflow website and the Dayflow 2013 Comments, reveals that the NDOI significantly overestimates outflow in drier periods.

Any new water transfers will be in addition to the 1500 cfs of water exports already allowed by State Water Board emergency orders. The total amount of water transfers by the USBR, SWP and private parties is unknown. The State Water Board has been routinely approving virtually all transfer requests without environmental review.[1] This present transfer project is the fourth in a series of water transfers for which the USBR has issued a FONSI and refused to prepare an EIS. Other FONSI’s were issued in 2009, 2010-2011, 2012 and 2013. In 2010, USBR issued a notice of its intent to prepare an EIS for a long-term water transfer but, after three scoping meetings, never issued a draft EIS.

The failure of USBR to conduct a full environmental review means that there has never been a comprehensive analysis of the potential adverse impacts of water transfers on surface water, water quality, groundwater, fisheries, vegetation and wildlife, special status species, geology and soils, land use, air quality, climate change, cultural resources, noise, recreation, energy, visual resources, socioeconomics, and Indian trust assets, as well as environmental justice and cumulative impacts associated with water transfers.

AquAlliance and CSPA are represented by:

  • Tom Lippe, Law Offices of Thomas N. Lippe APC: 415-777-5604 x 1
  • Michael Lozeau of Lozeau/Drury LLP : 510.836.4200 ext 103

Contact:

  • Barbara Vlamis, AquAlliance: 530-895-9420; cell 530-519-7468
  • Bill Jennings, CSPA: 209-464-5067; cell 209-938-9053

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AquAlliance is a 501 (c) (3) non-profit public benefit corporation established to defend northern California waters and to challenge threats to the hydrologic health of the northern Sacramento River watershed to sustain family farms, communities, creeks and rivers, native flora and fauna, vernal pools and recreation. www.aqualliance.net

The California Sportfishing Protection Alliance is a 501 (c)(3) non-profit public benefit conservation and research organization established in 1982 for the purpose of conserving, restoring and enhancing the state’s water quality, wildlife and fishery resources and their aquatic ecosystems and associated riparian habitats. www.calsport.org