By Lisa McEwen, SJV Water
Lawyers for the Eastern Tule Groundwater Sustainability Agency (GSA) recently fired a fusillade of legal arguments against Friant Water Authority’s contention that the GSA shorted its obligation to help pay for repairs to the sinking Friant-Kern Canal.
The arguments, essentially, boil down to Eastern Tule’s belief that the settlement agreement its board negotiated and signed in 2021 agreeing to pay Friant $200 million toward repairing the canal is illegal and unenforceable.
Friant sued Eastern Tule in 2024, saying the GSA violated that 2021 agreement.
Friant says Eastern Tule was supposed to charge its landowners enough in pumping fees to both pay Friant a minimum of $200 million and disincentivize excessive pumping, which is what sank the canal in the first place.
But after four years, Friant collected only $23 million because of what it says were Eastern Tule’s lenient use of groundwater credits.
And the canal is still sinking.
As the lawsuit against Eastern Tule has progressed, the GSA has splintered, with water districts leaving to form their own groundwater agencies. Friant also went after those districts for money to make up the shortfall from Eastern Tule.
Two districts, Tea Pot Dome and Vandalia water districts, settled with Friant, paying the authority $1.4 million. Meanwhile, Friant’s attempts to get money from the Porterville, Saucelito and Terra Bella irrigation districts have evolved into separate legal actions.
Eastern Tule still exists, eventually to be governed under a joint powers agreement between Tulare County, the City of Porterville and the Hope and Ducor water districts. Its proposed new name is Tule East GSA and it will cover mostly “white lands,” a nickname for areas outside of water district boundaries that rely almost entirely on groundwater.
On Aug. 26, Tulare County Superior Court Judge Bret Hillman heard arguments on Eastern Tule’s motion that the 2021 settlement agreement is void for one or more of the following reasons:
- It unlawfully impairs the Eastern Tule’s authority under the Sustainable Groundwater Management Act (SGMA).
- It utilizes Eastern Tule to exact SGMA penalty revenue for Friant.
- It benefits private landowners at public expense.
- It was never a valid contract because there was a “lack of consideration” to Eastern Tule. That means Eastern Tule didn’t receive any benefit from paying pumping fees to Friant.
Attorneys spent the better part of an hour on Aug. 26 in circular arguments citing legal cases, water code and SGMA before an obviously exasperated Hillman.
Lawyers for Friant argued that SGMA specifically gives GSAs the legal authority to assign fees to pumping, so there was no impairment of Eastern Tule’s legal authority under the 2021 settlement agreement.
“The settlement agreement is a creature of SGMA,” said Friant attorney David Darroch. “It is a mitigation measure under SGMA that was created under statute to achieve the goals of SGMA, which are to reduce subsidence, be protective of water and avoid damage to infrastructure within the GSA.”
Lawyers for Eastern Tule argued the case should be dismissed outright because Eastern Tule no longer exists in the form it did when the 2021 settlement agreement was signed.
“A goal of the motion is to bring the lawsuit to an end and allow the SGMA process to continue in an orderly fashion as new GSAs take over implementation responsibilities for portions of the Tule Subbasin,” said Eastern Tule attorney Gina Nicholls.
In its motion for dismissal, Eastern Tule asked that if the judge does find the settlement agreement binding, that it not apply those conditions to the GSA’s future actions considering the GSA is now a shell of its former self and the state Water Resources Control Board placed the subbasin on probation last year.
Under probation, growers must meter and register their wells and pay pumping fees to the state that are separate from GSA and water district fees.
“ETGSA took a well-intentioned shot at mitigating for overdraft via the (2021) agreement, but as new GSAs take over SGMA authority from ETGSA, the agreement’s viability must be examined,” Nicholls argued during the Aug. 26 hearing.
Attorney Alex Peltzer, who represents Tea Pot Dome and Vandalia, attended the hearing. Tea Pot Dome was a member agency of Eastern Tule but broke away in June 2024 to form its own GSA.
Regardless of the outcome of the case, Friant still needs funds to fix the canal. It is possible Friant could begin going after specific landowners.
“That’s exactly why we settled,” Peltzer said. “We didn’t want this hanging over their heads. It’s a continuation of the concept of the (2021) agreement.”
He added: “Throughout the SGMA process, we need to be able to come to agreements about what level of pumping requires mitigation and everyone has always assumed that landowners doing the pumping should pay for mitigation.
“I would hope we don’t end up with a decision that calls that into question.”
Arguments taken under submission are ruled on within 90 days. The case could be dismissed, or head to trial. An estimated 10-day trial is scheduled for Dec. 22, 2025.
