Order prevents enforcement actions in groundwater case

By Caleb Hampton 

A Kings County judge ruled Friday that the California State Water Resources Control Board violated rulemaking laws and exceeded its authority by making unachievable demands of water managers in the Tulare Lake Subbasin when it placed the subbasin on probation in April.

Tulare Lake became the first subbasin put on probation under California’s Sustainable Groundwater Management Act when the water board voted that the subbasin’s groundwater agency had failed to develop adequate plans to bring its aquifer into balance by 2040.

On Friday, Kings County Superior Court Judge Kathy Ciuffini issued a preliminary injunction in the case, which stems from a lawsuit brought by the Kings County Farm Bureau against the water board.

The ruling extends a pause on probation requirements, which were put on hold in July by a temporary restraining order, until the case goes to trial. It gives reprieve to farmers who pump 500 acre-feet or more per year.

Under probation, they would have been required to install water meters, register their wells for $300 each, report groundwater extractions and pay $20 per acre-foot pumped. Those obligations were on top of fees imposed by water districts and groundwater sustainability agencies.

The next hearing in the case is scheduled for Jan. 10. A trial date has not been set.

“The preliminary injunction is a monumental win for Kings County Farm Bureau and California agriculture,” Dusty Ference, executive director of the county Farm Bureau, said in a statement. “Today’s ruling highlights the validity of our claims and showcases our likelihood to win in court in the future.”

The Kings County Farm Bureau’s lawsuit argued the probation requirements would cause extreme hardship for farmers and could not be achieved within the 90-day time frame set by the water board.

Ciuffini agreed. “The harms to the Plaintiffs have been and will be substantial if a preliminary injunction is not issued,” she ruled in issuing the injunction.

The court “considered SWB’s arguments that an injunction would harm domestic water users, drinking water quality, public infrastructure, natural resources or its ability to implement SGMA,” Ciuffini wrote. She ruled that the water board failed to show “urgency or losses” would occur specifically in the Tulare Lake subbasin within the period the water board gave farmers to comply with the requirements.

Water board spokesman Edward Ortiz said the agency disagreed with the ruling.

“The State Water Board believes that SGMA is clear and that the Board has the authority it needs to implement SGMA, as it has in the Tulare Lake Subbasin, to protect vital groundwater supplies,” Ortiz said. “We are considering further legal options to uphold the board’s oversight of critically overdrafted basins.”

In siding with the Farm Bureau, Ciuffini said the water board’s demands—including for installing water meters within 90 days—were “impossible to comply with.” She ruled that the board had “remained indifferent to plaintiffs’ struggles, some of which they created.”

Additionally, Ciuffini determined that the water board did not properly establish regulations to govern the probation process. The preliminary injunction said the board violated administrative procedures by omitting the public notice and review process when developing its rules for placing a subbasin on probation and adopting an interim sustainability plan.

“There is no process to follow; nor does it give the right to appeal any decisions,” Ciuffini ruled.

The ruling will be closely watched by other subbasins with probation hearings scheduled before the water board. The neighboring Tule subbasin goes before the board this week. The Kaweah, Kern, Delta-Mendota and Chowchilla subbasins will have probation hearings next year.

(Caleb Hampton is an assistant editor of Ag Alert. He may be contacted at champton@cfbf.com.)