Tulare Lake GSAs win in court as Tule Subbasin GSAs join them on probation

Two big battles are unfolding right now in the ongoing Central Valley Water Wars.

Last Thursday, a Kings County judge again ruled in favor of the Kings County Farm Bureau in its lawsuit against the State Water Resources Control Board (SWRCB). The judge extended an injunction issued in July that halted costly and difficult-to-implement probationary demands issued against the region’s water users. The injunction is in effect until the matter goes to trial.

The judge’s decision came days before the SWRCB struck again on Tuesday. This time the board – following a 10-hour-long meeting in the state capital – placed the Tule Subbasin GSAs on probation as well. The vote to intervene in the Tule Subbasin imposes nearly identical requirements as those now under suspension in Kings County.

Conditions of probation in the Tule Subbasin begin January 1.

Lawsuit a ‘Huge Win’ for Kings County Water Users

In its ongoing lawsuit, the Kings County Farm Bureau is challenging the fairness of the state’s actions against water users. Their attorneys claim fees imposed on water users are arbitrary, punitive and excessive, and they fall outside the response allowed by the State Groundwater Management Act (SGMA).

In July, Judge Katherine Ciuffini concurred in principle with the bureau’s claims, issuing a temporary order allowing water users to ignore the state’s demands. That order has now been extended until the matter has concluded in court.

Kings County Farm Bureau executive director Dusty Ference called the judge’s order a “huge win for Kings County growers” in an email.

“The preliminary injunction pauses everything probation in the Tulare Lake Subbasin,” he said in a follow-up interview. “It’s almost like the probation doesn’t exist for us. I say that, but it could come back.”

If the matter is decided in the state’s favor, the injunction would be lifted and the fees and reporting requirements would return. But the bureau appears to have a good case. It challenges whether the state is allowed to respond as vigorously as it has in the Tulare Lake Subbasin. So far, it appears the state may have exceeded its legal mandate, but only a trial – or its settlement – can decide the issue.

The SWRCB, the bureau’s suit contends, went beyond the scope of SGMA when it imposed usage-based pumping fees and annual reporting requirements. The bureau argues the state was too swift to impose itself on GSAs in the Tulare Lake Groundwater Subbasin. The state, in response, claims the failure to control water usage required a fast and clear response to halt overpumping of a key and very limited resource.

Despite Ruling, Conservation Work Must Go On

Ciuffini’s decision last week certainly bodes well for the plaintiffs in the suit in the longer term, But it doesn’t mean water users in the Tulare Lake Pumping Subbasin are free of SGMA and its limits on pumping.

In fact, the work is starting all over again.

“We’re back to complying with the State Groundwater Management Act, meaning the local GSAs need to get their plans submitted and hopefully approved, so they’re in compliance with the law,” Ference said.

Everyone involved on both sides of this issue are aware of the stakes involved.

“Groundwater in California is the most important resource we have to manage,” Ference said.

And that is why the SWRCB is so eager to bring GSAs in the Tulare Subbasin into line with the requirements of SGMA. Meanwhile, no one is suggesting lack of ample water for all purposes for all users does not constitute a full-blown crisis for the Central San Joaquin Valley and much of the rest of the state.

But Ference and his backers, while they agree water is precious and must be conserved, also have the future welfare of the people of Kings County to consider. That requires good water management and at the same time allowing people to make their living.

“We have never argued that changes don’t need to take place,” Ference said. “We’ve only argued it needs to be done in a sustainable way without detrimental harm to our community.”

Compromise or Die Trying

To even the most stubborn of climate-change deniers, it’s obvious water users in the Valley are draining a difficult-to-replace resource. The evidence is clear when considering the Friant-Kern Canal. This major aqueduct running much of the length of California has sunk so severely due to groundwater over-pumping that a miles-long segment in southern Tulare County had to be replaced.

Yet it’s still sinking.

At the same time, without enough water, the Valley’s people will also suffer severely. Not just from thirst. Between fulfilling the water needs of the community and protecting the environment and sustaining the Valley’s absolutely vital ag industries, there has to be a balance.

What should a water protection scheme that meets all those requirements look like? No one really knows.

“That’s such a complex question,” said Ference. “It has to be an available supply of surface water to create food and protect jobs, while providing for communities. I’m not saying anything new.”

Sketching such a plan out will require many experienced voices. The water question is simply that distended and complicated.

“It requires input from engineers and the community,” Ference said. “It’s a question I could spend three days answering.”

But he doesn’t have the time. The state is pushing to get past objections to its probationary restrictions. There’s no timeline for when the suit will conclude. The clock is ticking down to an uncertain but inevitable deadline.

And there’s one hell of a lot on the line. This is a genuine life-or-death issue for the hundreds of thousands of people living in the Tulare Lake Pumping Subbasin. Their livelihood is literally on the line.

“Ag is directly responsible for 25 percent of jobs. We’re the main provider of tax revenue,” the farm bureau chief said. “We will be a ghost town in Kings County if we don’t manage the Groundwater Sustainability Act correctly.”

Tule Subbasin on State Probation Starting in 2025

And the problem of finding the right approach has just grown enormously.

Water users in the Tule Subbasin now find themselves facing essentially identical restrictions and demands from the state for using water. At a hearing held Tuesday in Sacramento, the SWRCB placed Tule Subbasin on probation. Board members unanimously approved.

This nearly doubles the area where water users are on probation. The Tulare Lake Subbasin covers 524,000 acres (about 820 square miles) and is home to more than 150,000 people. The decision Tuesday brings another 469,000 acres (around 730 square miles) and another 160,000 to 180,000 people in Tulare and Kings counties under state control.

However, there is one major difference. The probation may not be all-inclusive. The resolution passed by the SWRCB acknowledges a request by the Lower Tule River Irrigation District and Pixley Irrigation District to be excluded from the probationary designation, reporting and fees. The SWRCB staff will review the requests and report back to the board in mid-December. They’re trying to grant or deny those requests before the January 1 start date.

But they believe there’s a good chance they won’t be done on time. So if the exclusion is granted after the deadline, it would be retroactive. Reimbursing water users in the two irrigation districts was discussed by SWRCB members, but it is not clear if a provision was included in the final probationary order.

Division of Opinion on Tule Subbasin Probation

Most members of the public who addressed the SWRCB prior to its placing the Tule Subbasin on probation opposed it. But not all did.

“We are in support of you all making the decision to move the Tule subbasin into probation,” Angela Islas, a representative of the Central California Environmental Justice Network, told board members.

It was a common theme: a desire for decisive action to address a pressing issue. Ruth Martinez, a resident of Ducor, restated the importance of groundwater management for her town.

“It is very important to me that my public water system continues to have access to water, and it is very important that the groundwater is managed in a sustainable way,” she said in a statement read to the board.

Maria Marro, an advocate with the Community Water Center, said the state provides a buffer between residential water users and agricultural and industrial interests. She highlighted the criticality of the matter.

“These families need for the state to hold the GSA’s accountable to protect their only source of water,” Marro said. “For these reasons, I strongly urge the board to vote yes on probation to protect groundwater in the Tule Basin.”

Tule Basin Ag Interests Eager to Avoid Probation Restrictions

The majority of those who addressed the board wanted to avoid probation. And their reasoning is sound. They say they need more time to comply. And they’re worried the state’s fees could be the end for some farmers.

Valerie Jackson, representing the Corcoran-based Tri County Water Authority, told the SWRCB the local leaders could work the problems out among themselves.

“Tri County respectfully requests that the State Board decline to deem the subbasin probationary at this time,” she said. “A deferral of a probationary designation will permit Tri County to continue to work through remaining technical issues and collaborate with other GSAs.”

Those living in the Tule Subbasin are also worried state fees could overburden growers to the point of failure. Among them was grower Seth Merritt.

“We’re not asking for a handout. We’re just asking to break even,” Merritt said. “For a lot of us farmers out there, our backs are against the wall. And when you start putting these extra costs on us, some of us aren’t going to make it.”

Fourth-generation farmer Vincent Sola worried state involvement in the Tule Subbasin could extend the problems there well into the uncertain future.

“There’s still a lot of work to be done to implement and tweak these plans as we go forward. I ask that you not place the Tule subbasin on probation,” he said. “I don’t want to see a Tulare Subbasin matter in the Tule Subbasin, or nothing will get resolved for a long time.”

Water Conservation at a Make-or-Break Point

These two ongoing battles in the Central Valley Water Wars mark a distinct change in the state’s relationship with the multitude of small, local agencies that control the state’s water. The fight is turning nasty. There are those – some in positions of authority – who believe we’ve reached a point where we must cooperate or lose everything.

“I think we’re at that fork in the road where the probation … will force us to come together or completely fracture this basin,” said Porterville assistant city manager Michael Knight.

Despite that warning and the potential cost for residents of the Tule Subbasin, the SWRCB unanimously approved probation. E. Joaquin Esquivel, chair of the SWRCB, said he and his fellow board members had greater issues with which to contend.

“I think we’re all struggling with this,” he said. “We have a desire to work with local agencies. We also have a responsibility to ensure that people have water. I know that this is not an easy conversation … but … given the inadequacy of even the revised GSPs that we’re seeing I feel that we need to move ourselves down along this process.”

While acknowledging the far-reaching fallout of probation for the Tule Subbasin, Esquivel said too much is at risk not to act. And to act swiftly.

“I know amongst many that it (probation) is a nuclear option, that it harms the community’s interests,” he said. “But at the same time, given the urgency, given the criticality of the groundwater resources to both growers and communities that are dependent on it for drinking water, I sense an urgency here amongst us all to act.”

SWRCB vice chair Dorene D’Adamo also said the board felt compelled to act. California is in a dangerous, acute state regarding its water.

“This is not an easy decision, but It just strikes me that we really are at a crisis in terms of our groundwater resources in this state, and the time to act is now,” she said.