Court Rules the Public must be Informed about Groundwater Pumping

Water Pump

On August 9, 2012 Judge Grillo of the Superior Court in Alameda, Ca. granted the environmental group, Living Rivers Council (LRC), their Writ of Mandate that the State Water Resource Control Board (SWRCB) must comply with the California Environmental Quality Act, CEQA, regarding groundwater protection mitigations when applying for water diversions from streams in the North Coast. The Writ directs the SWRCB to set aside a new Policy Document, (Maintaining Instream Flows for Northern California Coastal Streams) analyze the groundwater delineations prepared for the public as protection measures for groundwater resources and disclose the ineffectiveness of existing regulations to address groundwater depletion that can be caused from diverting streams for human uses.

While the SWRCB characterizes the courts ruling as information disclosure that is ‘a small amount of information not necessary for recirculation to the public’ the Court counters with a warning to the SWRCB that under public disclosure laws it is unlikely that this information is not slight and unnecessary to inform the public. Additionally, the SWRCB tried to rely on groundwater protection mitigations to the five counties within the Policy region (Napa, Sonoma, Marin, Mendocino, and Humboldt) but only one County (Napa) has groundwater regulations. California is the only state in the western U.S.A. that does not regulate groundwater. Current SWRCB authority over groundwater applies to: 1.) permitting authority over subterranean streams 2.) the Public Trust Doctrine to protect fishing swimming and recreation 3.) enforcement authority of percolating groundwater to prevent waste, unreasonable use and method of use. The SWRCB has no permitting authority over percolating groundwater. In a state with a Mediterranean climate and increasingly frequent draughts it is unacceptable that the legislature has ignored protecting groundwater resources to date and recent attempts to do so, failed in legislative committees.

Prior to 1914 water diversions had no regulations and the wild west mentality ruled. Some said, ‘Whiskey is for drinking and water is for fighting’. After 1914 the SWRCB was developed and people wanting to divert water from streams had to file an application for a permit. However, most did not follow water laws and stole water from streams resulting in thousands of illegal and destructive water diversions throughout the State and hundreds of backlogged applications. Sadly, many streams have gone dry due too many water diversions. Currently, the SWRCB has no idea which streams have sufficient flows to allow further diversions and which streams are over appropriated. Hence Ab2121 was signed into law in 2004 by Governor Schwarzenegger ordering the SWRCB to develop principals and guidelines for the administration of water rights while protecting stream flows for fishing, swimming and recreation. A new ‘Regional Criteria’ was approved on May 4, 2010 for the administration of water rights whereby water diverters must establish water availability prior to diverting water for use such as water for grapevines (prevalent agriculture on the North Coast) stock ponds and recreation.

For over 15 years Living Rivers Council and other North Coast activists have been filing water diversion complaints and protests to conserve stream flows for fishing, swimming and recreation. Water diversions, many illegal, have devastated aquatic ecosystems throughout the North Coast bringing anadromous (salmon) fish near the brink of extinction.

The SWRCB was required to follow the California Environmental Quality Act and conduct an environmental review of the new water diversion Policy Document for the administration of water rights and to identify environmental impacts. In the review of the new Policy, the SWRCB said that water diverters could/would choose to pump groundwater (subsurface) instead of diverting water from streams (surface flows) to avoid the new scientific rigors and stream protection measures of the Policy. To further study this impact the SWRCB hired Stetson Engineers, Inc. to map groundwater impacts. Stetson Engineers determined through mapping existing groundwater depletion areas that there could be further impacts by new groundwater extraction due to the new AB2121 policy changes. In order to mitigate the pumping of groundwater Stetson developed a mitigation scheme which would require groundwater pumping setbacks from streams to protect stream flows.

Living Rivers Council filed a lawsuit asking the court for a Writ of Mandate to compel the SWRCB to recirculate the environmental documents on the new Policy and to discuss and mitigate for groundwater pumping impacts to streams.

In summary, State Superior Court Judge Grillo Alameda, Ca. granted Living Rivers Council their Writ of Mandate. The Court held that the SWRCB denied the public the right to informed self-government and abused their discretionary powers by choosing not to inform the public of the Stetson Engineer’s groundwater study and mitigations. The SWRCB must now disclose to the public the groundwater information and mapping by Stetson Engineers to provide the public the opportunity to address groundwater pumping impacts and the mitigations necessary when water diverters choose to pump groundwater.

Chris Malan, Manager of Living Rivers Council said, we need to advocate for long term recovery of California fresh water resources for all to fish, swim and recreate. Future generations count on us to keep our streams flowing.

Chris Malan, LRC