By Lois Henry and Monserrat Solis, SJV Water
Dual appellate court opinions issued Wednesday in a closely watched groundwater case out of Kings County will likely mean three things: Farmers there will have to start reporting extractions and paying fees; the state will reopen communications with local water managers; and the lawsuit will continue.
The Kings County Farm Bureau sued the Water Resources Control Board in May 2024 after the Water Board placed the Tulare Lake subbasin, which covers most of Kings County, on probation for lacking an adequate groundwater plan.
Under probation, farmers must meter and register their wells at $300 each, report extractions and pay the state a $20-per-acre-foot fee.
The Farm Bureau obtained a preliminary injunction against those measures as part of its lawsuit, which alleges the Water Board overstepped its authority under the Sustainable Groundwater Management Act (SGMA) and failed to notify landowners of the impending sanctions, among other issues.
The Water Board appealed the injunction as well as a Kings County judge’s denial of its motion to dismiss several causes of action in the case.
On Wednesday, justices on the Fifth District Court of Appeal agreed with the state and tossed out the preliminary injunction.
They also found Kings County Superior Court Judge Kathy Ciuffini erred by overruling a Water Board motion to dismiss three causes of action.
Justices left some causes of action intact, which Farm Bureau Executive Director Dusty Ference said were its “central legal challenges,” including that the Water Board exceeded its authority and imposed sanctions improperly.
“We remain optimistic,” Ference stated in a press release. “We look forward to having those claims fully heard in the trial court.”
The lawsuit also accuses the Water Board of failing to exempt two Tulare Lake subbasin groundwater agencies from probation under the so-called “good actor clause.” That’s a hot button issue in other regions, including the neighboring Tule subbasin, which is also under probation.
Justices agreed with Ciuffini on that issue saying the Water Board should have analyzed those groundwater agencies separately rather than lumping them into a single probationary pot.
That could be significant as both of the opinions were published, meaning they could be cited as precedent in other similar cases.
Over the past 18 months, while the Farm Bureau’s lawsuit moved forward, Water Board staff ceased engaging with local water managers, leaving them to work on their own to patch up their faulty groundwater plans.
That should change with Wednesday’s rulings, according to a Water Board spokesman.
“Board staff will contact the subbasin’s sustainability agencies in the near future to restart discussions about how to resolve the deficiencies in their plans that led to the probationary designation of the subbasin,” Edward Ortiz wrote in email. He did not elaborate on a timeframe for when those discussions would restart.
Meanwhile, local agencies have been implementing some of the very measures the state would have imposed, including requiring farmers to register wells and report extractions, setting pumping limits and establishing fines for going over those limits, among other policies.
That work is focused on being ready for exactly this day.
“The minute the injunction gets lifted, we need to be prepared to move and get our plan submitted, regardless of the rest of the subbasin,” consulting engineer Amer Hussain told the South Fork Kings GSA board at its Oct. 16 meeting.
“We’re really close,” Doug Verboon a Mid-Kings River GSA board member and Kings County Supervisor told SJV Water after learning of the Fifth District’s rulings. “I hope we can get there. Give us some time to get our plan in place.”
After the Water Board’s probationary designation in April 2024, the original Mid-Kings GSA imploded amid accusations of secrecy and exclusion. It had to be rebuilt from the ground up with the county taking on a lead role. A major new aspect of the reconstituted GSA has been a strong grower advisory group.
“It’s a shame that we’re far behind because it was in the hands of others for so long, but I believe that with my working (advisory) group, we can put it together,” Verboon said. “They’re young and talented and they know we have to get something in place and I think we can get it done.”
