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Adjudicated water decisions often not best for growers

World Ag Expo water forum
<p>Speakers at the World Ag Expo&rsquo;s water forum, from left, Mark Larsen, Kaweah Delta Water Conservation District; Scott Kuney, Young Wooldridge Law Firm; Dorene D&rsquo;Adamo, California Water Resources Control Board; and, Mark Watte, grower and Kaweah Delta Water Conservation District director.&nbsp;</p>
Adjudication is a costly and time-consuming process Water attorney says its generally not in a farmer&#39;s best interest Local governing process still argued as yielding best results to growers

If there is one bright spot about California’s drought it’s that the weather was near-perfect for the 48th annual World Ag Expo in Tulare, Calif. in mid-February.

Visitor counts were unavailable at deadline but expo staff and volunteers say attendance was good while exhibitors seemed pleased with the turnout and their interest in the various goods and services on display at the international exposition.

With California’s drought on everyone’s mind, the International Agri-Center hosted a groundwater management workshop during World Ag Expo to help growers understand California’s new groundwater law, or in political terms - the Sustainable Groundwater Management Act of 2014 (SGMA).

Much of the discussions in the workshop centered on the basics of the law, including timelines established for the formation of groundwater sustainability agencies (GSA) and deadlines for the mandated reports those agencies must produce.

For much of California’s agricultural growing region those deadlines are mid-2017 to have GSA’s formed and 2020 to have plans in place to sustainably manage groundwater supplies.

The entire Central Valley from Bakersfield to Redding overlays groundwater basins the state has determined to be of medium or high priority because of overdraft issues.

Perhaps the newest and most interesting portion of the event according to some who attended the workshop was a legal explanation of California water rights and regulations related to adjudication. That is effectively when a court decides who has rights to what water and orders a plan to mandate how and when water can be used, and by whom.

Avoid adjudication

Scott Kuney, a water attorney with Young Wooldridge in Bakersfield, Calif., told growers in the audience that adjudication may not be in their best interest. Because California water deliberations can oftentimes become contentious, some believe that adjudication is the best way to settle water disputes.

Kuney explained that adjudication is a comprehensive judgment with three parts: a determination of water rights, a financial component and a water management component. There are currently 27 groundwater basins in California that have been adjudicated.

In short, once a basin is adjudicated, landowners and other parties within that basin are told by a court how much water each can extract from the basin. Water rights are assessed by the court and orders related to funding the court’s rulings are made.

While politically unpalatable for many growers, some have seen adjudication as a long-term best solution to decades of water battles, Kuney said. The up side to adjudication is once a court has ruled; legislative and regulatory changes cannot alter the court’s decision.

Tulare farmer Mark Watte was one of several members on the panel. He said that while adjudication does give permanent certainty to water solutions in a defined basin it is a last-ditch effort of those involved.

“We definitely want to avoid adjudication if at all possible,” said Watte.

During his comments, Watte advised growers in the room not to overextend their water use by maintaining a high percentage of permanent crops on their land.

“You better not have 100 percent of your land in permanent crops,” Watte warned.

Watte also suggested growers become more active in the formation of the GSA’s and in the ongoing discussions that will certainly develop over the use of groundwater in California.

Long and costly

Adjudication processes are long and expensive, Kuney said. The adjudicated basin in Santa Maria, Calif. took more than nine years to settle in court. That case stemmed from a dispute over storage space regulated from Twitchell Reservoir.

An adjudication process in the Antelope Valley Basin in the Mojave Desert region of California has been ongoing for 15 years and is just now finding closure, Kuney added.

These court cases can cost millions of dollars to litigate by the various parties and may not always offer the best option for parties in those basins, Kuney continued.

Kuney presented a series of questions those looking at adjudication will want to ask before filing court documents to start such a process. Parties will want to know:

  • What is the problem that needs to be solved? For instance, are there severe overdraft, water rights, water quality issues or other undesirable impacts occurring in the basin that cannot be addressed outside of court?
  • Who will be the parties involved? This can be quite numerous and can include individual landowners, cities, water agencies, public utilities, the state and federal governments, American Indian tribes and others.
  • Who holds what rights to water in the basin?
  • How much time will this take?
  • How much will this cost?
  • What evidence will be needed? This will likely include decades of records from various agencies and will most certainly include reasonable and beneficial use of the water in question.
  • Who are the witnesses? In such cases individual landowners, government representatives and a host of experts including engineers, agronomists and economists will likely take the stand in such cases.

At the end of all this, Kuney says the California Constitution mandates that water meet a “reasonable and beneficial use,” to which the courts will always have an active role in ensuring basins and water resources are protected from harm and undesirable results.

While adjudication efforts will center on groundwater use, surface water will also be a component of the discussions as there are recharge and supplemental supply issues related to surface water sources. These discussions will be of particular interest to those in California who hold water rights going back to a 1913 legislative decision that awarded what are commonly referred to as “senior rights” to various individuals and entities.

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Other speakers at the water forum included California State Water Board representative Dorene D’Adamo, Kaweah Delta Water Conservation District General Manager Mark Larsen and Watte, who sits as a director of the Kaweah Delta Water Conservation District.

D’Adamo repeated what she and others have said for several months now in discussing this issue, saying the State Water Board is not interested in managing individual groundwater basins: that is up to the local agencies that will be formed under the SGMA. However, the state board does have the authority to step in and manage districts that do not form agencies or establish approved plans.

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