Wednesday, October 20, 2021

Adjudication: the Physical Solution

A group consisting of some of the larger water users in the Ventura River watershed have proposed a "Physical Solution" to the water rights adjudication lawsuit currently underway.     

According to California water law, a Physical Solution in theory "affords a means to introduce creativity and flexibility to improve basin management while maintaining consistency with water right priorities".  "Regardless of how a physical solution is pled, the goal and elements of the doctrine remain unchanged: to provide coordinated management of the water supply and thereby maximize the beneficial use of the resource."  (McGlothlin, 2016)

Summary of Proposed Ventura River Physical Solution

The following is a summary of the proposal quoted directly from the document (bold type added for emphasis):

This proposed physical solution and settlement agreement was developed in partnership with: Ventura River Water District, Meiners Oaks Water District, Wood-Claeyssens Foundation (Taylor Ranch), Rancho Matilija Mutual Water Company and other large water users.

This Physical Solution does not determine water rights or directly limit water Production. Instead, it creates a specific plan to manage the Watershed to protect existing reasonable and beneficial uses of the water within the Watershed.

 The Physical Solution establishes a long-term Management Plan or Plan that accounts for: the specific needs of the Fishery, variable hydrology of the region, periods of low and very low precipitation, and the condition and quality of the habitat during the lifecycle of the Fishery, including the specific reach habitat requirements pertinent to that lifecycle, and thereby ensures the viability of the Fishery through a series of coordinated management actions under the Plan. Collectively, these management actions undertaken by the Parties will concurrently preserve public trust resources and provide a continued water supply for the thousands of people, farms, and businesses that rely on the Ventura River Watershed for water.

At their discretion, GSAs in the Ventura River Watershed may rely on implementation of the Physical Solution for a finding that no additional implementation measures are required to address potential significant and unreasonable effects of groundwater pumping on the beneficial use of interconnected surface water by the Fishery, in the event that any such potential significant and unreasonable effects of groundwater pumping are identified during initial GSP development or subsequent 5-year GSP updates.



Management Plan/Mandatory Plan Elements

The core of this Physical Solution is the development, implementation, and adaptive management and updating of a Management Plan (or the “Plan”) that will move the condition of the Southern California Steelhead in the Watershed from Baseline Conditions to Good Condition


Actions to protect Historical Flow Conditions, which are largely replicated by existing flow conditions, in combination with habitat enhancement elements identified in the Plan, will be sufficient, barring extraordinary conditions, to move the Fishery from Baseline Conditions to Good Condition.


The fish population was higher in the pre-development period as compared with the post-development period, even though flows were the same or lower than post-1958 conditions


(Therefore) habitat conditions, rather than flow conditions alone, have affected the Fishery. 

-       Accordingly, improving habitat conditions with non-flow measures and preserving Historical Flow Conditions will improve the Fishery to ultimately achieve Good Condition.


Flow metrics were the same or lower during the pre-development period as compared with the post-development period

-       rainfall and flow in the Watershed has largely remained consistent over the historical period (generally 1929 through 2019)

-       Historical flow records are available prior to 1958 (pre-development conditions) and post-1958 in three critical reaches in the Watershed: Ventura River near Foster Park, lower San Antonio Creek, and North Fork Matilija Creek.



habitat conditions in the Watershed downstream of Matilija Dam have been degraded over the past 150 years through agricultural and urban development, construction of dams, water storage infrastructure, flood control infrastructure, and other factors



Required Habitat Improvement Elements


1.     Fish Passage Improvements 1 – Sub-Surface Interceptor Wall and Improvements Around Concrete Pipe at Foster Park

2.     Fish Passage Improvements 2 – Improvement of the Fraser Street Road Crossing

3.     Gravel Enhancement in Matilija Creek and North Fork Matilija Creek

4.     Boulder and Large Woody Material Augmentation in San Antonio Creek 

5.     Large Woody Material Augmentation in the Mainstem Ventura River near the Confluence with San Antonio Creek 

6.     Arundo Removal 

  1. Predator and Non-Native Fish Management 
  2. Matilija Dam - consideration of the adoption of resolutions of support for Dam removal or submission of written letters of support
  3. Additional Projects for Further Consideration 
    1. Wheeler Gorge Campground passage barrier, 
    2. replacement of the current Grand Avenue fair weather crossing with a free span bridge, 
    3. addressing various pipeline crossings that could present barriers or impediment such as the Casitas pipeline that crosses San Antonio Creek and the Ojai Valley Sanitary District pipeline that crosses San Antonio Creek
    4.  brownfield remediation projects
    5. conservation easements or livestock exclusion projects 
    6. land protection projects 


Required Historical Flow Protection Elements

Because the decline in the Fishery is linked most directly to loss of habitat and access thereto, the main actions required by the Plan will focus on improvements to Fishery habitat and Fishery access to habitat. At the same time, however, the Plan must also include specific steps to maintain and, if feasible, enhance Historical Flow Conditions critical to the Fishery.

1. Foster Park Flow Protocols

a.      The Plan will recognize and include the City’s existing water management protocols at Foster Park that meet or exceed requirements to protect Historical Flow Conditions in this reach. The City’s implementation of these Foster Park Flow Protocols does not determine or limit its water rights in any way, consistent with this Physical Solution.

2.    2. San Antonio Creek

a.     identify Historical Flow Conditions 

b.     measures to prevent degradation of flows in San Antonio Creek

c.      implement monitoring measures

 3.  North Fork Matilija Creek 

a.     identify Historical Flow Conditions 

b.     measures to prevent degradation of flows in North Fork Matilija Creek 

c.      implement monitoring measures

4. Voluntary Water Management Measures 
    1. Production Forbearance Program
    2. Examples of these efforts include the projects identified as part of the Ventura River Watershed Instream Flow Enhancement and Water Resiliency Framework 

5.     GSP Processes 

a.     this Physical Solution will help to achieve the Groundwater sustainability goals of SGMA within the Watershed. Specifically, this Physical Solution will improve the Fishery, which may be relevant to the undesirable result of depletions of interconnected surface water

6.     Monitoring and Reporting 

    1. hydrology monitoring program
    2. fish monitoring program
    3. performance assessment monitoring for restoration/enhancement features
    4. habitat monitoring program
    5. annual reporting on each monitoring program. 

7.     Plan Evaluation – Adaptive Assessment and Management 


Uncontrollable Conditions 

the Bound Parties will not be considered to be in violation of this Physical Solution… for any circumstance beyond the Bound Parties’ control, including without limitation, 

-       any act of God, war, fire, earthquake, flood, windstorm, drought or natural catastrophe, including climate change; 

-       the need to provide an amount of reasonable and beneficial consumptive use of water from the Watershed

-       criminal acts; civil disturbance, pandemic, vandalism, sabotage, or terrorism; 

-       restraint by court order or public authority or agency

-       action or non-action by, or inability to obtain the necessary authorizations or approvals from any governmental agency.



California water law is notoriously confusing, but it appears that the proposed Physical Solution does not provide for "coordinated management of water supply," but rather a suite of other measures that don't involve water.  The document makes the case that habitat, rather than flows, are the cause for decline of the endangered steelhead, and that maintaining "historical flows" as determined from 20th century flow gage data is adequate.  Although the document relies on the assumption that the watershed was not developed prior to 1958, it is important to note that by 1890 there were over 4,000 acres of irrigated agriculture in the Ojai Valley. 

Further commentary was published in the local press below.

In the news:

Letter: Solve the adjudication, Bert J. Rapp, Ventura River Water District, Ventura County Star



On this blog:

Ventura Initiates Adjudication


Russell M. McGlothlin and Jena Shoaf Acos, The Golden Rule* of Water Management, 9 Golden Gate U. Envtl. L.J. 109 (2016).

City of Ventura Adjudication:  

Why Support the Physical Solution? By: Ventura River Water District,