[env-trinity] Times Standard: Groundwater ruling has rippling effects

[Tom Stokely]

http://www.times-standard.com/localnews/ci_26178669/groundwater-ruling-has-rippling-effects 

Groundwater ruling has rippling effects
Groups: Decision could lead to unprecedented state regulations
By Will Houston
whouston at times-standard.com@Will_S_Houston on Twitter
POSTED:   07/17/2014 11:00:00 PM PDT
1 COMMENT
UPDATED:   07/18/2014 10:58:41 PM PDT



Amid concerns of costly and unregulated use of California's groundwater, a Sacramento Superior Court judge has ruled groundwater pumping that impairs waterways violates the public's right to use those waterways, which one group states could set the stage for making counties responsible for implementing regulations.
"What we have here in California is a first-time ruling that groundwater pumping has to be managed and regulated to protect nearby rivers under the (California Environmental Quality Act) and public trust doctrine," Environmental Law Foundation staff attorney Lowell Chow said. "It hasn't really been applied by California courts before, certainly not with respect to groundwater. What we have here is a decision that we think is a pretty big deal because it shifts the landscape in terms of how we deal with groundwater management."
Humboldt County currently does not regulate how groundwater pumping impacts its waterways, but it does regulate the standards of how wells are drilled, according to county Department of Health and Human Services supervising environmental health specialist Carolyn Hawkins.
"Our groundwater is a lot closer to the surface," she said. "We interact with it. It's much more in our sights than in Southern California, where you may have wells much deeper at 150 feet below the surface. It's much more in people's minds up here than in other parts of the state."
In a court order published Tuesday, Judge Allen Sumner states that under the public trust doctrine — a common law doctrine dating back to ancient Rome — the state owns all navigable waterways within its borders, not in a proprietary sense, but as a public trust for the benefit of its people. Previous case law shows that navigation, commerce and fishing are protected by the doctrine, he wrote.
"The court does not hold the public trust doctrine applies to groundwater itself," Sumner wrote. "Rather, the public trust doctrine applies if extraction of groundwater adversely impacts a navigable waterway to which the public trust doctrine does apply."
The ruling was made as part of an ongoing case filed by Oakland-based nonprofit the Environmental Law Foundation, as well as the Pacific Coast Federation of Fisherman's Associations and the Institute for Fisheries Resources in 2010. The case seeks to end unregulated groundwater pumping that affects the Scott River in Siskiyou County. The plaintiffs argued the State Water Resources Control Board and the county are responsible for regulating groundwater well permitting that could present a risk to waterway flows, especially in the ongoing drought. The water board does not regulate groundwater pumping permitting or monitor extractions.
While the focus of the case is limited to the Scott River valley, Chow said it could propagate a larger effect.
"One outcome that might come out of this is that if it increases awareness ... whether it's in the state itself or among the general public or even the Legislature itself, if we can spark some action here to get people to become more serious about groundwater management and to be smarter about how we deal with groundwater in California, then that's an outcome we can be happy with," he said. "Otherwise, it will be up to the courts to have to deal with this problem."
Siskiyou County Counsel Brian Morris said the county will be appealing the decision.
"Siskiyou County believes that this is an improper extension of the public trust doctrine that will create chaos in groundwater management in the state of California," he said. "Basically, it's going to put the courts in charge in administering groundwater. We would rather have the Legislature make that decision and have a more comprehensive report." Either way the state Court of Appeal rules, Morris said the ruling will more than likely go to the California Supreme Court. Once a final decision is made to determine if the public trust does apply to this legal issue, the original case will return to superior court for trial.

GROUNDWATER SUPPLY

There are an estimated 81 trillion gallons of groundwater statewide — enough to fill over 120 million Olympic-sized swimming pools — though not all of it is potable, according to the State Department of Water Resources. Groundwater makes up 30 to 46 percent of the state's water supply, but can provide up to 60 percent of the state's water supply in a dry year.
About 5 million acre-feet of groundwater is expected to be extracted statewide this year, according to a study released Tuesday by the Center for Watershed Sciences at UC Davis.
By the end of 2014, the study states that the proportion of agricultural irrigation water pumped from wells is expected to jump from 31 to 53 percent — a 62-percent increase in overall statewide groundwater pumping — which will cost producers about $454 million and could continue into the following years.
"The additional pumping in 2014 will drop water levels from a few feet to tens of feet, causing some growers to lose their wells and others paying more to pump from them," the study states.
The state water board currently does not regulate groundwater extraction permitting in the state, Public Affairs Director George Kostyrko said.
"We do regulate surface water, but we don't really have the same powers for regulatory oversight for groundwater," Kostyrko said. "It is locally controlled by counties or cities."
The Environmental Law Foundation's lawsuit sought to name the state water board as a responsible entity, but Sumner said his ruling does not address the board's authority to regulate groundwater.
Humboldt County has four main groundwater basins — the Eel River Valley, Eureka Plain, Mad River Valley and Hoopa Valley — which have an estimated storage capacity of about 215,000 acre-feet, according to 1998 data from the Department of Water Resources. This figure does not include Eureka Plain's groundwater supply as there was no data available, but Planning and Building Department Kevin Hamblin said it would add "several thousand acre-feet" to the total amount.
County Public Works Department Director Tom Mattson said the county just began monitoring three wells in the Eel River Valley in March in accordance with state law, with the Department of Water Resources monitoring three others. The monitoring will only look at the elevation of the groundwater in each well, but not the amount of water in them.
"Over time, we'll be able to see how it drops and rises based on what the conditions are," he said.

DIGGING DEEPER

Denver Nelson, a former Humboldt County planning commissioner and member of the state Technical Advisory Panel of the Groundwater Assistance Grant Program, said the depth of the wells is an indicator of water supply.
"For the groundwater there along the Eel River bottoms in Ferndale, the water level is probably is about 10 feet below the surface, and it goes down during the summer," he said. "It really is dependent on the water that comes down the Eel. You can tell if you're pumping too much water out of the groundwater if you have to drill a deeper well to get it."
Stuart Dickey of Rich Well Drilling and Pump Service Inc. in McKinleyville said he averages three to five phone calls a day requesting his company to drill wells, and about one-third are requesting to have their wells drilled deeper.
"We went out to a spot (Thursday) and pulled a pump because they were running short up on McClellan Mountain," he said. "We drilled the well last year. The elevation dropped 15 feet in the last year."
As for the number of wells currently in the county, Hawkins said her department does not have a figure, but she has seen a surge in applications to install groundwater extraction wells over the past year.
The UC Davis study states that California is the only western state without groundwater rights regulations and does not measure groundwater use, but that both the state Senate and Assembly are considering two groundwater policy bills — AB 1739 and SB 1168 — which would provide incentives for increased management of groundwater and assure groundwater support for crops during the ongoing drought.
Will Houston can be reached at 707-441-0504.
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