STATE WATER RESOURCES CONTROL BOARD SEEKS WRIT IN APPELLATE COURT

The Septuagenarian Speaks – Published April 27, 2022 Siskiyou Daily News

NEWSFLASH! Below in its entirety is a column I wrote and was about to submit to the newspaper when I learned that on April 19, 2022, the State Water Resources Control Board filed a Petition for Writ of Mandate with the Court of Appeal of the State of California. The Writ Petition is against the Big Springs Irrigation District and the Siskiyou County Superior Court. On April 1, 2022, Superior Court Judge John Lawrence issued orders temporarily blocking the Board from enforcing its groundwater-pumping curtailment and denying the Board’s motion to change the venue of the court proceedings to another county. The Writ Petition seeks an immediate order setting aside and vacating Judge Lawrence’s orders. As of this writing, the State’s Petition has not yet been heard, and there will surely be much more to come on this very important topic. Read my column below for the background.

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Drought! California is again experiencing extreme drought conditions, the new normal. It impacts me every day, and I’m just a city guy (if Yreka is a “city.”) We have limitations on watering our lawns and washing our cars.

But if we city folks believe we’ve got it bad, think of our friends who depend on agriculture for their livelihood. No form of agriculture can survive without water. For them it’s existential. “Whisky’s for drinkin’, water’s for fightin’ over,” said Mark Twain.

Water is so essential that when there is not enough, society has to make value judgments when deciding who is entitled to receive it. It’s like a triage at an accident scene: who do you try to save? It seems that today society has to choose between Indian Tribes, Coho and Chinook Salmon, and farmers and ranchers.

The latest battleground concerns underground water. The evolution of the law regarding allocation of water rights is complex, but until recently has mostly involved surface water: the diversion of water from lakes, rivers, streams, and creeks, not underground water.

Surface waters have been regulated in California for a long time. But regulation of water wells is something new. In the past the only limit on where or how deep you could drill your well was based on what you could afford. But now the county must scrutinize well drilling permit applications much more vigorously. This is partially because of a law passed by the California Legislature requiring groundwater to be managed more aggressively. The law is called SGMA. The Sustainable Groundwater Management Act.

One battle in the water war is currently taking place in the Siskiyou County Superior Court, and it is significant. It is Big Springs Irrigation District v. California State Water Resources Control Board (SWRCB), case number CVCV 22-317, filed March 29th. The irrigation district has sued a state bureaucratic agency, the Water Resources Control Board, and is asking the court to declare that the agency lacks jurisdiction and authority over the pumping of percolating groundwater for lawful uses by its landowners. The irrigation district is represented by Yreka attorneys Darrin Mercier and Martin Andreas. The Water Resources Control Board is represented by attorneys from the office of the Attorney General of California.

The first hearing occurred April 1st, and has already garnered wide-spread media attention, as it should. Although the specific issue is narrow, the case is important because it may serve as a bellwether of the future existence of agriculture in Siskiyou County and beyond.

The irrigation district’s lawsuit asked the court to prohibit the state agency from ordering the curtailment of the district’s use of its wells. The brief hearing on April 1, 2022 was only the first step. Judge Lawrence’s ruling determined that the district’s case had enough merit to grant the temporary relief of allowing the district to continue to pump until the next hearing, scheduled for May 5, 2022. Judge Lawrence also issued orders setting a briefing schedule for both sides and calendaring a full day hearing.  On May 5th the judge will decide whether to extend the temporary orders for a further period of time pending a full and complete trial. The district hopes that if it prevails on May 5, the extended orders will allow its farmers and ranchers to irrigate throughout this year’s irrigation season.

That will be a major victory for the district, and for Siskiyou County’s agricultural community, but it is only the beginning. At some point far-reaching legal questions need to be resolved.

The district’s position is that neither state law nor Governor Newsom’s recent Emergency Proclamations give the water board the authority to regulate or curtail the pumping of percolating ground water, as opposed to surface or subterranean stream flow, and that the government’s attempt to do so constitutes overreach.

Much of the state’s 16-page opposition memorandum dwells on the authority of the water board to regulate and curtail wells that pump from “hydraulically connected” ground water, and contends that it has the authority to curtail the district’s wells because they affect minimum surface flows, as measured by gages at various locations along the Shasta River. The evidence submitted by the state supporting its position that there is a connection between the district’s pumping from its wells and the water flows of the Shasta River and its tributaries was weak.

Judge Lawrence issued a written order after the April 1st hearing asking both sides to address certain questions in preparation for the May 5th hearing. He asked, “Are the three wells operated by the Big Springs Irrigation District pumping underground water which is ‘percolating groundwater’ or is it from ‘a subterranean stream flowing through known and definite channels?’” and then the follow-up question, “What actual evidence is there in support of your answer?”

Besides responding to the merits of the district’s action, the state also made a motion for a change of venue to another county, and argued that Judge Lawrence was without authority to rule on the merits until the change of venue motion is determined. The state’s change of venue motion was half-hearted at best. The state’s brief on that issue appeared to have been a “boilerplate,” possibly just copied from another case. For example, instead of referring to “Big Springs,” the brief referred to “Big Basin” (actually in the Santa Cruz Mountains). The state’s initial response to the district’s action seemed careless, and its attorneys appeared telephonically, rather than showing up in person. Telephonic appearances in such matters are authorized by the court’s rules, and proper, but can indicate the emphasis a party is making about an issue. On the other hand, the state’s attorneys had very little time to respond and prepare for the April 1st hearing. Judge Lawrence denied the change of venue motion.

The April 1st proceeding was just the beginning. The next hearing, scheduled for May 5th, will have a greater impact because, if Judge Lawrence’s order is extended, it should cover more of this year’s irrigation season.

It’s a case we should all pay attention to as it works its way forward. Probably the decision of a local Superior Court Judge won’t be the last word on the matter. That will likely come from an appellate court, state or federal, and will take a while. But it’s a start.

Over 150 years ago our community thrived because of the gold rush. Fifty years ago, its economic base was largely the timber industry, but that was decimated by the Spotted Owl and government regulation. Today our economic base is primarily agriculture, now threatened by drought, salmon, and government regulation.

Bob Kaster
Yreka, California

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