By Lois Henry, Lisa McEwen, Monserrat Solis
The state Water Resources Control Board exceeded its authority, operated under a web of “underground regulations” and made unlawful demands of Kings County water managers, according to a preliminary injunction that is a near total repudiation of state actions in its attempt to reign in excessive groundwater pumping.
“Clearly, the actions of this state agency have not been transparent, are only known to SWB, and there has been no review, analysis or ability to challenge their conduct,” Kings County Superior Court Judge Kathy Ciuffini wrote in the injunction issued Friday.
The ruling is part of a lawsuit brought by the Kings County Farm Bureau against the Water Board after the board placed the region, known as the Tulare Lake subbasin, on probation at an April 16 hearing.
“Today’s ruling highlights the validity of our claims and showcases our likelihood to win in court in the future,” Dusty Ference, executive director of the Farm Bureau, said in a statement.
Reprieve
It also means a significant financial reprieve for Kings County farmers.
Probation would have meant farmers pumping 500 acre feet or more a year would have had to meter and register their wells at $300 each, report extractions and pay $20 per acre foot pumped. That is on top of what farmers already pay their water districts and groundwater sustainability agencies.
If deficiencies noted in the region’s groundwater plan couldn’t be fixed to the Water Board’s satisfaction within a year, the state would establish its own pumping limits.
Those requirements are now all paused under the injunction until the trial is concluded. The next hearing is set for Jan. 10, 2025.
Edward Ortiz, a spokesman for the Water Board wrote in an email that the board disagreed with Friday’s ruling, “which prevents the Board from taking action stemming from the probationary designation of the critically overdrafted Tulare Lake Subbasin.”
Though Ortiz noted this ruling only applies to the Tulare Lake subbasin, water managers in other San Joaquin Valley subbasins facing probationary hearings are paying close attention.
The neighboring Tule subbasin comes before the Water Board on Tuesday. The Kaweah subbasin’s hearing is scheduled for Jan. 7, 2025, then the Kern subbasin goes to the board on Feb. 20, 2025. The Delta-Mendota and Chowchilla subbasins will face probation hearings some time later in 2025.
“Not transparent”
In the Tulare Lake subbasin, the Kings County Farm Bureau had argued, among other things, that the requirements under probation would cause extreme hardship on Kings County farmers and were not justified under the Sustainable Groundwater Management Act.
Judge Ciuffini agreed, writing that the Water Board had not publicly adopted regulations giving clear direction for the processes it would use to: 1) place subbains on probation; 2) determine if parts of the subbasin could be exempted; 3) adopt an interim pumping plan for subbasins; 4) administer the subbasin during probation; or 5) how a subbasin could get off probation.
In one example, Judge Ciuffini details her reasons for denying the Water Board’s argument that the court doesn’t have jurisdiction because the plaintiffs didn’t first exhaust all administrative remedies, meaning to bring their concerns to the Water Board first.
Citing the Water Board’s own resolutions on how farmers or water managers can appeal concerns, Judge Ciuffini writes that the instruction “…leaves more questions than answers. It is not transparent.” For instance, the instructions don’t include a named person to contact, nor contact information.
“There is no process to follow; nor does it give the right to appeal any decisions,” Ciuffini writes. “SWB failed to consider this and remained indifferent to plaintiffs’ struggles, which they created.”
“Underground regs”
The ruling goes on to state the Water Board adopted resolutions – such as a requirement adopted in 2021 to analyze the impacts of groundwater plans with particular consideration to impacts on communities of color – without a full public process and after plans were crafted in 2020 under previous rules. That and other similarly adopted resolutions, Cuiffini noted, created “underground regulations.”
Her ruling chides Water Board staff for ignoring a mandate to consider the so-called “good actor clause.” That clause states that if some groundwater agencies within a subbasin are found to be compliant with SGMA, they should be exempted from probation. But Water Board staff didn’t do the required analysis when two Kings County groundwater agencies requested exemption, the ruling states.
The ruling states the Water Board unlawfully required new or amended groundwater plans be submitted to the board when SGMA states new or amended plans should go back to the Department of Water Resources for evaluation.
Finding clarity
Eric Limas, general manager of the Lower Tule River and Pixley Irrigation District groundwater agencies in the Tule subbasin, hoped the ruling would “at least provide some clarity.”
“This is our first time through this, for all of us including the state board,” he said in reference to how SGMA should be implemented to bring over pumped areas into balance.
Other water managers were pleased on behalf of farmers who were facing increased fees and fines under probation.
“But with that, SGMA is not going away,” said Deanna Jackson, general manager of the Tri County Water Authority, which covers lands in both the Tulare Lake and Tule subbasins. “I do think it means that the state has to find some clarity around what the fees will be used for.”
She noted that any money taken out of the subbasins to pay those state fees is less money that can be used locally for needed programs such as fixing dry wells.
SJV Water is an independent, nonprofit news site covering water in the San Joaquin Valley, www.sjvwater.org. Email us at sjvwater@sjvwater.
