By Lois Henry, SJV Water
Appellate court justices heard arguments Tuesday in the highly watched dispute over whether the state exceeded its authority when it placed the Tulare Lake subbasin on probation last year for failing to come up with an adequate plan to protect the region’s groundwater.
Or, whether a Kings County judge erred by refusing to dismiss the case and issuing a preliminary injunction that has held probationary sanctions at bay all this time.
A ruling by the 5th District Court of Appeal is expected “soon,” which could mean two months or longer.
The Kings County Farm Bureau sued the Water Resources Control Board after the probationary designation, which requires farmers to meter and register wells at $300 each, report extractions and pay the state $20 per acre foot pumped.
The injunction has prevented those actions in the Tulare Lake subbasin, which covers most of Kings County.
The outcome of Tuesday’s arguments could have far reaching effects throughout the San Joaquin Valley, most of which is severely overdrafted and struggling to comply with the Sustainable Groundwater Management Act (SGMA).
An attorney for the Water Board said the injunction has not only prevented enforcement of SGMA in Kings County, it could potentially dump the bulk of the state’s $6.6 billion oversight costs on other subbasins.
Indeed, farmers and water managers in the neighboring Tule subbasin, also placed on probation last year, have become alarmed that they could be left paying all the state’s SGMA oversight costs. Six San Joaquin Valley subbasins have come under Water Board scrutiny, though only two have so far been placed on probation.
On Tuesday, the parties argued whether the Water Board had created “underground” regulations in its enforcement of SGMA, prohibited under the federal Administrative Procedure Act.
Water Board attorney Margaret Tides denied the Water Board had operated under a web of underground regulations.
“We’re doing the same thing, we’re citing the same law” to all local agencies, Tides said.
Valerie Kincaid, the attorney for the farm bureau, also accused the Water Board of excluding landowners from meetings it held with the Department of Water Resources (DWR), another state oversight agency that evaluated groundwater plans.
“The Water Board could have had an open meeting or come out with a report,” Kincaid said. “They did none of that.”
SGMA does not require the state to hold public meetings with stakeholders in collaboration with DWR, Tides responded.
On the issue of the injunction, Tides said it was improper as the Water board was simply carrying out the mandates of SGMA.
“The board’s duty is to review (groundwater) plans that are revised to address deficiencies,” Tides explained of the Water Board’s process after a region is placed in probation.
She also argued that the injunction disregarded the general public’s interest by allowing excessive pumping in the region to exacerbate subsidence, land sinking, decrease water quality and potentially damage domestic wells.
Kincaid countered that the Water Board had failed to identify the public’s interest, or explain what data it currently holds and what it plans to do with that information.
“The Water Board is confusing in their argument by not identifying why the preliminary injunction would stop public interest,” Kincaid said.
Tides argued that public interest is defined by the court.
The parties also argued over whether the “pay first, litigate later” rule applied. That rule states that when a tax is disputed, participants must still pay it even if they sue. If a court rules in their favor, they can get a refund later.
Kincaid explained that fees the Water Board wanted to impose, such as $20 per acre foot pumped, were fees, not a tax.
“This fee is not collected by the State Controller, but by the Water Board,” Kincaid said. “The Water Board did not take the proper steps to apply a tax.”
Kincaid also argued that the Water Board failed to produce proof of notices – such as mailing lists – sent to landowners about the probationary status and the proposed sanctions.
“The evidence of notice is in staff reports,” Tides said. The Water Board reached out to certain groups, but because of privacy concerns, did not share names or addresses of those the Water Board spoke to, she said.
“I don’t know if either side won or lost anything,” Farm Bureau Executive Director Dusty Ference said after the hearing. “Everyone made the arguments they needed to make and it’s in the panel’s hands now.”
