Kings County Superior Court Judge Kathy Ciuffini issued a restraining order to temporarily halt state-mandated probationary groundwater monitoring and reporting requirements for all water users in the Tulare Lake Groundwater Subbasin. The order was issued Monday, July 15.
Lawsuit Seeks Stop to State Intervention
The order is the first handed down in a lawsuit filed by the Kings County Farm Bureau (KCFB) against the State Water Resources Control Board (SWRCB). The suit is an attempt by the bureau to prevent the state from implementing probationary measures it ordered in April that apply to all water users in the subbasin.
The Tulare Lake Groundwater Subbasin – comprised of the Mid-Kings River GSA, the South Fork Kings GSA, the El Rico GSA and the Tri-County Water Authority, and the Southwest Kings GSA – was placed on probationary status by the SWRCB for failing to complete adequate plans for conserving the groundwater supplies they control. By the terms of the probation, water users under the authority of those agencies have been ordered to begin precisely monitoring the amounts they pump for reporting to the SWRCB at year’s end..
Dusty Ference, executive director of the KCFB, viewed Ciufinni’s order as a victory in the effort to push back against the state intervention.
“It means there is no legal requirement to meter groundwater pumping, and for at least the time period of July 15 through August 20 that pumping will not be reported in December,” he said. “It won’t be reported at all.”
The ruling, however, only applies to the recording and requirements demanded by the SWRCB. Other such requirements must still be observed.
“If a little GSA has a reporting requirement, a grower still has to comply with that,” Ference said.
Judge to Consider Issuing Stronger Temporary Injunction in August
On August 20, the judge will decide if the temporary restraining order should be turned into a longer-term temporary injunction that would remain in effect until the matter is decided by trial. The end of the trial – if the suit makes it to that stage – could be a long time coming.
“Weeks or months, if not more,” said Ference. “There’s no date set.”
Ciuffini was reportedly swayed by testimony that the monitoring requirements present an undue financial burden on farms and ranches. The state’s requirements would also have meant long delays in irrigation of crops during the hottest, driest time of the growing season. While it stops any immediate harm, that is not the prime importance of the decision for those seeking to curb the state. Ference said the ruling is an indicator of a likely future victory.
“The decision on the 20th is important because, if the injunction is awarded, it shows we have the ability to win this case on merits,” he said. “Secondly, the importance is it puts on hold all of the requirements put on by probation until we go to trial.”
In its reporting on Monday’s order, the Associated Press (AP) reported the SWRCB issued a statement disagreeing with Ciuffini’s decision.
“This requirement is an important part of the probationary process under the 2014 Sustainable Groundwater Management Act (SGMA), which protects groundwater resources for the benefit of all Californians,” the statement said, according to AP.
SWRCB also placed a notice of the suspended requirements on its website on July 16. It reminded “groundwater extractors” to stay up to date with state requirements. It also urged users to check the website – waterboards.ca.gov – frequently for updates.
SGMA – enacted in 2014 to protect and preserve the state’s aquifers – created a series of local groundwater sustainability agencies (GSAs) in high- and medium-priority groundwater basins and subbasins. Those GSAs are now tasked with creating individual groundwater sustainability plans (GSP) and putting them into action. The GSAs have 20 years from the time their GSP is implemented to reach and maintain a sustainable level of pumping.
Kings County Court Orders Could Curb State Water Board
If Ciuffini issues the injunction, Ference said it would amount to a rebuke to the SWRCB. This could be critical as that agency’s board considers whether to place several other GSAs in the southern San Joaquin Valley on similar probationary status.
“This should force the State Water Resources Control Board to consider their actions around probation differently than what they did for us,” Ference said.
The requirements the SWRCB has placed on Tulare Lake Subbasin GSA is a subversion of SGMA’s intent, Ference said. By requiring monitoring and pumping of groundwater now, the SWRCB has denied the GSAs the 20-year grace period the law grants them to perfect their GSPs.
“The state created an underground regulation when they placed us on probation,” Ference said. “And what they did was they arbitrarily moved the date of SGMA from 2040 to essentially today. That was one of the biggest problems.”
But there are others.
Farm Bureau Chief Says Fees ‘Illegal and Immoral’
The probationary status of Tulare Lake Groundwater Subbasin GSAs doesn’t just place recording and reporting requirements on those pumping well water. It also created a $300 registration fee for each well and a $20 per acre-foot pumping fee. Ference said the lawsuit seeks to learn how the SWRCB decided on that amount.
“On another note, they have not justified the fees that they intend to charge the subbasin. And we can’t make sense of what they are,” he said. “What they haven’t justified is the absorbent amount. Legally, the same agency can’t charge more than what it costs to run a program.”
Specifically, the plaintiffs in the case – the KCFB and two of its members, Helen Sullivan and Julie Martella – claim the SWRCB has failed to explain why they need so much money to run such a relatively small program.
“They haven’t justified the exorbitant amount. They haven’t told us why they need $300 per well as a registration fee and $20 an acre-foot as a pumping fee,” Ference said. “They’re looking, I think, at tens of millions of dollars, if that’s what they actually charge us. And they can’t justify that expense for our program.”
While the subbasin’s water users may or may not be able to afford those fees, the real issue for the courts to decide is whether the fees are warranted.
“Can they (afford it) or not isn’t the question,” Ference said. “The question is, is it appropriate?”
He questions the legality – and the effectiveness – of the SWRCB’s actions.
“If the state is collecting more than it needs to run the program, why are they doing that?” Ference said. “What is that money going towards? And how does it help achieve sustainable groundwater management?”
He also questioned the legality of the behavior of SWRCB’s leadership as it relates to spending the allegedly oversize fees.
“If it’s going to anything besides what growers are being charged for, it’s illegal and immoral,” Ference said.
Wide Financial, Spiritual Support for Bureau’s Fight
The Kings County Farm Bureau is soliciting donations to its legal fund to cover the cost of the lawsuit. The plaintiff’s outlay has already reached six figures. Costs will grow as the suit progresses.
“We need contributions,” Ference said. “We’ve invested over $100,000 so far to get us where we are, and we;re just at the beginning.”
Those whose livelihoods are most at risk have been heavy donors. Growers, equipment suppliers, processors and similar interests have provided funding to get the suit underway.
“Landowners, groundwater pumpers in and around the Tulare Lake Subbasin have contributed, Ference said. “And outside of that, business owners that rely on agriculture. They’ve contributed financially directly.”
The bureau’s director said its fight against the SWRCB has wide support locally, as well as in all farmland that may eventually be affected by the state’s actions. It’s a battle for the existence of agriculture and the many industries that exist alongside and because of it. And for the people who depend on those income sources, Ference paints the issue as one of life and death for the Valley’s towns and cities..
“In spirit, a lot of people are supporting (the lawsuit), because people understand this isn’t an agricultural issue, it’s a community issue,” Ference said. “Without agriculture, Kings County and many of the counties that are facing probation, they don’t have a community.”
Both Water and the Economy Must be Preserved
The state, he believes, could strangle the Valley’s economy if it continues to implement SGMA in this fashion. Fighting the state, he said, should be the business of everyone who lives here.
“Agriculture is the economic driver in Kings County and these other areas,” Ference said. “So, it’s imperative to not (only) farmers and ranchers, but everyone, that the State Water Resources Control Board doesn’t run us out of business.”
Even more critical to maintaining a healthy agricultural economy is a reliable source of water. While this is obvious, the state’s method of protecting limited groundwater is too crude for an issue as intricate as water use in California.
“We have to communicate and work on a plan that achieves sustainability while allowing communities to thrive,” said Ference. “It can’t be a hammer from a state agency that solves this problem. It’s a big problem and complex.”
It also appears to those fighting it that SGMA is written to be difficult to implement. And it’s self-defeating. The wrangling means nothing has been done yet to conserve groundwater.
“One of the biggest frustrations with all of this is two different plans have been submitted and two different plans have been denied for different reasons,” Ference said. “But in all of that time, plans weren’t able to be implemented on the ground, so we really don’t know if they’d have worked or not.”
Flawed State Process Slows GSA Action
The wording and implementation of the law has also put Tulare Lake Subbasin GSAs behind schedule in meeting their legal obligations. And meanwhile water is being wasted.
“And the way SGMA’s written, you create a plan, you monitor its progress and you check in with DWR every five years, and you adjust accordingly, but the Tulare Lake Subbasin is now behind not entirely at their own fault,” Ference said. “So when do we get to implement a plan to see if it’s actually going to work?”
As Ference said, he believes only an effort that includes input from all stakeholders will get a working, economically viable GSP into place before time runs out.
“There are efforts underway to do that,” he said. “Farm Bureau doesn’t have a hand directly in developing these plans. We’re not authorized under the law to have much of a role other than public comment.”
Stifling efforts to form adequate, workable GSPs is the fact the state holds all the power in this case.
“The hurdle there, though, is if a groundwater sustainability agency implements a plan, and the state water board has the authority to come back and say that’s not working, you need to adjust it,” Ference said. “They have the ability to say that’s not enough, and you have to do more to satisfy us, but not tell us how to comply.”
That lack of clear and concise instructions on how to amend a GSP to get it the state’s OK has hamstrung the process of protecting California’s groundwater for future generations. Despite good faith efforts to comply, those running the GSAs are stuck navigating a new and uncharted landscape without guidance. SGMA demands groundwater protection, but doesn’t provide any direction on how to achieve its goals.
“Then what are you left with? What do you do from there?” Ference said. “That’s been a frustration in this process, they’re told that’s not good enough, but they’re not told if you do these things it will be. You’re just told, ‘Well, it’s not good enough. Go figure it out.’”