A judge slaps the state with an injunction, saying the water board overstepped its authority in Kings County: “There has been no review, analysis, or ability to challenge their conduct.”
By Rachel Becker, Cal Matters
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In a scathing ruling, a Superior Court judge has lambasted state water officials for going too far and invoking “underground regulations” when they penalized Kings County water managers for failing to protect overpumped groundwater in the San Joaquin Valley.
Kings County Superior Court Judge Kathy Ciuffini last week granted a preliminary injunction that bars the State Water Resources Control Board from requiring growers to pay fees and report how much water they pump from the county’s severely overdrawn aquifers. The injunction could last through a trial, which has not yet been scheduled.
“Clearly the actions of this state agency have not been transparent, are only known to the (water board), and there has been no review, analysis, or ability to challenge their conduct,” Ciuffini wrote in her decision. She added that the agency failed to show how an injunction from the court “would cause specific, identifiable harm to the public.”
Brought by the Kings County Farm Bureau and other growers, the lawsuit challenges the state’s decision to designate the severely depleted basin as “probationary,” which triggers fees and monitoring requirements.
The judge sided with growers’ claims that the board relied on “unlawful” and “underground” regulations when it placed the basin on probation. The state water board “had over 10 years to adopt regulations for state intervention but failed to do so. As to this unlawful regulation, the plaintiffs will prevail on the merits of their claim,” she wrote.
The groundwater basin, located in the San Joaquin Valley, serves a vast expanse of dairies, ranches and farms — including those controlled by agricultural giants J.G. Boswell Company and Bay Area developer John Vidovich — as well as disadvantaged communities.
Edward Ortiz, a spokesperson for the water board, said the agency is “considering further legal options,” noting that the state needs to protect its oversight over “critically overdrafted basins.”
“All Californians benefit when groundwater is managed sustainably. Groundwater makes up a significant portion of the state’s water supply and serves as a critical buffer against the impacts of drought and climate change,” said Ortiz. He said the law is clear and that the board has the authority it needs to protect groundwater.
The decision grants a substantial respite for growers in the basin, who were facing a state mandate to install meters on their wells and pay fees of $300 per well and $20 for every acre foot of groundwater they pump.
Today marks the tenth anniversary of the state’s landmark Sustainable Groundwater Management Act, which aims to stop dry wells, sinking earth and other consequences of over-pumping groundwater.
“Clearly the actions of this state agency have not been transparent, are only known to the (water board), and there has been no review, analysis, or ability to challenge their conduct.”
kathy ciuffini, Kings County Superior Court Judge
Under the law, local groundwater agencies must develop a plan to rein in groundwater depletion by 2040 in the state’s most severely overtapped basins. But state officials said the Kings County agencies failed to submit revisions to its plan by an April deadline, despite multiple warnings that the plan had serious deficiencies and would “allow substantial impacts to people who rely on domestic wells for drinking, bathing, food preparation, and cleaning.”
A staff analysis reported that hundreds of groundwater wells could go dry, groundwater contamination could increase and that roads, canals and more would be damaged as the land continues to sink from overpumping.
So, in an unprecedented decision, the water board put the Kings County groundwater managers on probation — which imposes new fees and requirements to monitor pumping in a first step toward taking control of the basin.
The Kings County Farm Bureau and local growers sued, calling the decision unlawful. They said that the agency was slow to notify landowners of the new requirements and that the board’s deadlines for installing meters on their wells were hitting them during peak irrigation season.
This injunction reinforces and extends a temporary restraining order issued in July.
“Unmonitored groundwater pumping causes all kinds of harms, and stopping those harms is the reason why (the law) got enacted.”
dave owen, University of California College of the Law, San Francisco
Dusty Ference, executive director of the farm bureau, called the decision a “monumental win” that “highlights the validity of our claims.”
Legal experts noted that the 33-page decision sides heavily with the growers.
“There’s a striking contrast between the court’s detailed and sympathetic repetition of the plaintiffs’ claimed facts and its cursory dismissals of the (state water board’s) factual claims,” said Dave Owen, a professor at the University of California College of the Law, San Francisco.
“Those arguments weren’t crazy. Unmonitored groundwater pumping causes all kinds of harms, and stopping those harms is the reason why (the law) got enacted,” Owen said.
The injunction comes as state water officials are considering probation for another San Joaquin Valley basin tomorrow.
But Karrigan Börk, a law professor and interim director of the UC Davis Center for Watershed Sciences, said that the injunction is “likely to be a small speed bump” in the implementation of the state’s groundwater law.
“Ultimately, this lawsuit is just pushing off the inevitable,” he said. “It’s impossible to argue that the subbasin isn’t critically overdrafted, and ultimately that has to end.”
