Tuesday, April 28, 2015

ChannelKeeper sues to save a drying river

"The city of Ventura for decades has overpumped and diverted Ventura River water, threatening wildlife and water quality, and the agency responsible for protecting it is doing nothing, says a lawsuit filed September 22, 2014 against the State Water Resources Control Board."
                -   VCStar: Santa Barbara Channelkeeper sues for study of Ventura River water use

Ventura River at Foster Park - July 2013

According to ChannelKeeper;

“For 16 years, the State Water Board has recognized the Ventura River as impaired by pumping and diversion of water, yet has never conducted a Reasonable Use Analysis of the City’s pumping,” said Ben Pitterle, Channelkeeper’s Watershed and Marine Program Director. “The recent drought has brought water supply concerns to the forefront, but this unreasonable use has been occurring for decades. We feel the river can't wait any longer."

Some stretches of the river that once flowed year-round now frequently go dry for months at a time, and surface flows in other stretches have been reduced to the point that water quality is severely degraded. Where flow is insufficient, water temperatures rise, algae proliferate and suck oxygen out of the river, and fish and other aquatic species that depend on a clean, flowing river suffer. At the same time, those who pump water from the river, particularly the City of Ventura, continue to do so at an unreasonable and unsustainable rate. This situation is heading toward a crisis, especially as the City discusses plans for significant growth, which would exacerbate the problem.

“This is an issue that really needs to be resolved by the City developing a truly integrated water management system to ensure that our limited resources are not wasted and to ensure the future sustainability of the community,” said Paul Jenkin, Environmental Director with Surfrider Foundation, Ventura chapter, and longtime river advocate.

Critical Victory in Santa Barbara Channelkeeper’s Lawsuit to Restore Flows in the Ventura River

At a hearing in California Superior Court in San Francisco on Thursday April 23, 2015, Santa Barbara Channelkeeper won a critical victory in its lawsuit to restore flows in the Ventura River.  The Court affirmed that the SWRCB does indeed have a mandatory duty to prevent unreasonable use of California’s water and that Channelkeeper can seek to compel them to analyze the City of Ventura’s use of the Ventura River. The SWRCB is required to respond to Channelkeeper’s lawsuit within 21 days.

On May 14, the City of Ventura filed a cross complaint against the other water districts in the watershed (Casita Municipal, Meiners Oaks, Ventura River, Rio Manor Mutual, Senior Canyon, as well as Wood-Claeyssens Foundation (Taylor Ranch) alleging whereas the City's water use IS reasonable and beneficial, the other water districts are not.  Within this cross complaint the "City seeks a physical solution among City and all Cross-Defendants regarding their respective uses of surface and/or subsurface water and groundwater affecting the Ventura River."  In legal terms, "physical solution" refers to an a SWRCB adjudication or court proceeding which typically result in an enforceable order allocating the water (and the water rights) in the adjudicated stream system, groundwater basin or combined water source. According to Sawyers (see below), "Adjudications typically take years (or even decades) to complete because of the often complex legal and factual issues involved." 

UPDATE Nov 2015:

SB Channelkeeper scored another big victory on August 26, 2015 in a ground-breaking lawsuit to restore flows to the Ventura River.

The City of Ventura pumps hundreds of millions of gallons of water from the river each year, often completely dewatering parts of the river during critical dry weather periods and causing harm to habitat, endangered species, water quality, and recreation. The State Water Resources Control Board (SWRCB) has officially designated the Ventura River as impaired by excessive pumping and diversions, and it has a constitutional duty to prevent the unreasonable use of the state's waters. Despite this, the City continues to pump, and the SWRCB has done nothing, putting the health of the river in serious jeopardy.

 As a result, Channelkeeper filed a lawsuit in September 2014 seeking to compel the SWRCB to analyze the reasonableness of the City's use of the Ventura River. At a hearing in April, the California Superior Court overruled the City's and SWRCB's objections and affirmed that the SWRCB has a mandatory duty to prevent unreasonable use of state waters.

In response, the City attempted to burden the case by filing cross-complaints against every other water rights holder in the watershed, arguing that everyone's uses must be considered together. At our second hearing on August 26th, the Court again sided with Channelkeeper by forcing the City to drop its cross-complaints.

Channelkeeper’s hope is that the SWRCB will now agree to analyze the City's use of the river, and that ultimately that analysis will force the City to better balance its pumping to meet residential and municipal demand with the need to preserve in-stream flows for nature, fish and recreation.

The progress of the lawsuit may be followed on the San Francisco Superior Court Case Lookup website (case# CPF14513875). Be ready to prove you are not a robot.


 ChannelKeeper's writ complaint: SBCK2014.09.19.Writ_Complaint.pdf

 City of Ventura cross complaint:  2015 05 14 SBCK Writ_SBV Xcomplaint v. Casitas et al.pdf

More information on the complexities of California water law pertaining to this  legal situation may be found in A PRIMER ON CALIFORNIA WATER RIGHTSPrepared by Gary W. Sawyers, Esq. 
The following are excerpts from this paper:

Beneficial Use and the Public Trust Doctrine
Regardless of the nature of the water right in question, two very important principles will always apply. First, under the California Constitution, water must be put to reasonable and beneficial use. No water right grants any party the right to waste or make unreasonable use of water, a nd any water right can be curtailed or revoked if it is determined that the holder of that right has engaged in a wasteful or unreasonable use of water.
Second, no water user in the State "owns" any water. Instead, a water right grants the hol der thereof only the right to use water (called a "usufructuary right"). The owner of "legal title" to all water is the State in its capacity as a trustee for the benefit of the public. The so-called "public trust doctrine" requires the State, as a trustee, to manage its public trust resources (including water) so as to derive the maximum benefit for its citizenry. The benefits to be considered and balanced include economic, recreational, aesthetic and environmental; if at any time the trustee determines that a use of water other than the then current use would better serve the public trust, the State has the power and the obligation to reallocate that water in accordance with the public's interest. Even if the water at issue has been put to beneficial use (and relied upon) for decades, it can be taken from one user in favor of another need or use. The public trust doctrine therefore means that no water rights in California are truly "vested" in the traditional sense of property rights.

Adjudicated Water Rights
Many "water rights" in California are not quantified, but are simply claimed and/or exercised without objection by other parties. However, when competing demands for a common water supply--whether surface water, groundwater or both--become too great, formal adjudications are sometimes commenced by one or more of the competing claimants. Both the SWRCB and the courts can conduct adjudications under appropriate circumstances, which typically result in an enforceable order allocating the water (and the water rights) in the adjudicated stream system, groundwater basin or combined water source. Adjudications typically take years (or even decades) to complete because of the often complex legal and factual issues involved.
Frequently, the result of an adjudication is an equitable apportionment of water that does not "track" with a technical application of water law principles. For example, in a recently completed adjudication in the Mojave Basin, the court noted that strict adherence to priority of rights a nd correlative rights among water users of equal status created uncertainty and potential economic consequences. Therefore, the court applied a "physical solution" requiring all users of the common water source to share equitably both in the water and in the reduction in use necessary to reduce extractions to safe yield. As is commonly the case in judicial adjudications, the court also retained continuing jurisdiction over the implementation of the adjudication order, making the court an ongoing "player" in the administration of the basin.
Such physical solutions may produce the most appropriate allocation of the water resource, but they also create a number of issues. The adjudication order effectively supersedes water rights law, and any interested party must become familiar with the order's impacts on existing and future involvement with impacted water users. Depending on the adjudication order, a watermaster may be in place with jurisdiction over the affected water, and special procedures may be imposed on parties dealing with the water and water rights involved. Even more vexing is the relatively common situation in which the adjudication order effectively severs the water rights from the land, making them freely transferable separate from the land on which those rights originally arose. Adjudicated water rights therefore can fall into a category distinct from more traditional water rights.