Court Upholds Subterranean Flows is a Part of Gualala River

The Court denied NGWC contention that the State Water Board did not have authority over subterranean flows that are part of the Gualala River Flow regime.

This is an important case as it asserts the Water Boards authority to assert justification to maintain minimum by-pass flows to protect Beneficial Uses of Water.

Now the State Water Resources Control Board – Division of Water Rights needs to assert their authority and mandate to protect beneficial uses on our Impaired Water Bodies (rivers) by ensuring adherence to permit conditions and limiting wasteful uses of water.

The case is North Gualala Water Co. vs. State Water Res. Control Bd., No A109438 (Cal. 1st App. Dist. May 31, 2006).  Denial of petitions challenging defendant board’s jurisdiction to compel plaintiff to obtain a permit to pump groundwater from two wells located near the North Fork Gualala River, as well as defendant’s interpretation of pumping limitations placed on the permit, is affirmed over claims that defendant: 1) misconstrued the statutory phrase, “subterranean streams flowing through known and definite channels,” in Water Code section 1200; and 2) placed unwarranted conditions on plaintiff’s permit.

For more information, contact Alan Levine, Coast Action Group, P.O. Box 215, Point Arena, CA 95468

Use Permit Limiting Extraction of Groundwater Was Not a Taking

A conditional use permit limiting a landowner’s right to use groundwater underlying his property was not a compensable taking. Allegretti & Company v. Imperial County, Case No. D045156 (April 26, 2006).

Imperial County issued a conditional use permit allowing Allegretti to re-drill an inactive well on a 2,400-acre parcel subject to the condition that total groundwater extraction on the property be limited to 12,000 acre-feet per year. Allegretti claimed the condition constituted both a physical and regulatory taking of his property. The Fourth District Court of Appeal ruled that the county’s actions did not effect a physical taking because the actions lacked the hallmarks of an actual physical occupation or invasion of the land, in that the county did not appropriate, impound or divert any water.

The court also found no regulatory taking because the permit condition did not deny Allegretti all economically viable use of his property, nor did it meet the Penn Central takings analysis: the condition did not unreasonably impair the value or use of the property or invade or appropriate any of Allegretti’s property; and there was no interference with reasonable investment-backed expectations, as Allegretti’s water right was already restricted by the California Constitution to the amounts needed for the landowner’s reasonable beneficial use.

For further information concerning the Allegretti decision, please contact the following attorneys: Geoff Robinson ( geoffrey.robinson [AT] bingham.com ) 925-975-5335 Derek van Hoften ( derek.vanhoften [AT] bingham.com ) 925.975.5341

Judge Rules RP Water Study is Flawed

Judge Owen of Sonoma Superior Court tentatively ruled May 30 in favor of the OWL Foundation of Penngrove that says Rohnert Park doesn’t have enough water for 3,600 new homes planned on the city’s eastern edge and other proposed growth. Almost half of those homes already have City Council approval, based in part on a $344,000 water supply study.

When the council approved the 1,645-unit University District this month, city officials said it would be served by the system of 42 municipal wells and the Sonoma County Water Agency’s Russian River aqueduct. Rohnert Park had agreed to curtail its ground water pumping in 2002 after neighboring Penngrove residents sued over concerns that the city’s practices were causing their wells to run dry. However, the council approved a 1,645-home development this month, Rohnert Park’s largest in a decade. A separate plan for 2,000 homes was also recently unveiled. Rohnert Park has plans to annex more than 800 acres and build up to 4,000 homes over the next 20 years.

Continue reading “Judge Rules RP Water Study is Flawed”

Northern California River Watch v. City of Healdsburg

In January of 2004, the U.S. District Court issued an order in favor of Northern California River Watch. In the ruling, the court held that a former excavation site, a 58 acre Basalt Pond, was adjacent to the Russian River and was within the jurisdiction of the Clean Water Act (CWA). Thus, the City of Healdsburg must obtain a National Pollution Discharge Elimination System (NPDES) permit in order to discharge wastewater into the pond; unhappy with this ruling, they appealed it in court on November 16th, 2005.

Please check back for court ruling!

Continue reading “Northern California River Watch v. City of Healdsburg”

KLAMATH RIVER WATER QUALITY STANDARDS APPROVED

NEW AND STRONGER KLAMATH RIVER WATER QUALITY STANDARDS APPROVED BY CALIFORNIA
On 7 September, after much debate, the California Water Resources Board formally approved new water quality standards (called ³TMDLs,² or ³total maximum daily loads² in Clean Water Act parlance) for the mainstem of the Klamath River. This decision gives final California agency approval to the proposed new standards adopted by the North Coast Regional Water Quality Control Board on 24 March after nearly six years of work, including two sets of independent scientific peer reviews.
The newly adopted state water quality standards now go to the US Environmental Protection Agency (EPA) for final concurrence approval by a 31 December 2010, Court-ordered deadline. This set of TMDLs is the final set of many such TMDLs for northern California salmon-bearing rivers required as a result of litigation brought by PCFFA and others (PCFFA et al. vs. Marcus) in 1994 that later resulted in a Court-approved consent decree and strict time schedule for their completion.

These new pollution control standards will be implemented over the next several years to help clean up numerous water quality problems in the Klamath mainstem that have severely limited salmon production in what was once the third most productive salmon river system in the U.S. The new standards will also be the basis of any future water quality permits or requirements that PacifiCorp, which owns the J.C. Boyle, Copco 1 & 2 and Iron Gate hydropower dams in the Klamath River, might later seek if it changes its mind about dam removal and reverts back to seeking formal dam relicensing.

However, currently PacifiCorp is committed to the Klamath Hydropower Settlement Agreement (KHSA), which provides for removing these four mainstem hydropower dams and transferring its fifth non-power flow regulatory dam (Keno Dam) to the federal government by end of 2020, if the Secretary of Interior decides that dam removal is in the public interest by 31 March 2012. The KHSA also requires PacifiCorp to fund various interim protection measures to improve water quality between now and dam removal as a way to partially meet PacifiCorp¹s new TMDL obligations.

For a copy of the KHSA and the most current information on the federal government¹s dam removal NEPA environmental impacts assessment, now being conducted as part of the process to prepare for the March 31, 2012, dam removal Secretarial Determination, see: www.klamathrestoration.gov <http://www.klamathrestoration.gov/> .

For more information on the Regional Water Board¹s proposed standards, adopted by the State Board on 7 September with only very minor changes, you should refer to: www.waterboards.ca.gov/northcoast/water_issues/programs/tmdls/klamath_river .

For an article on this issue from the 8 September Eureka Times-Standard, see: www.times-standard.com/localnews/ci_16019384