From the California Spigot: Public trust suit would change game in the Delta

Reposted March 25, 2011, from:

http://californiaspigot.blogspot.com/2011/03/public-trust-suit-would-change-game-in.html

By Patricia McBroom

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Courtesy of California Department of Water Resources.

Water in California belongs to the people as a whole, under the protection of the state. It’s not supposed to be sold for profit. But that principle has been violated for years with little recourse for those in the water world who have watched it happen. Water has been sold to the highest bidder across the state often enough that many have come to view fresh water as a commodity – something they own and should make a profit on.

The drive to privatization received a big boost in 1995 when state water officials got behind closed doors and signed a pact with local water agencies called the Monterey Amendment. Within days, a large underground aquifer in Kern County fell under the control of an equally large private argibusiness headed by billionaire Stewart Resnick of Los Angeles. Since that time, water pumped from the delta rose by more than 50 percent, leading – most observers agree ­– to collapse of its fish populations. Not all of the water went to the now privately-run Kern County Water Bank, but a lot of it did.

Now a group of environmentalists has launched a three-pronged legal assault on the Monterey Amendment and violation of the public trust. Two lawsuits are moving slowly through the courts, while the third – potentially the most revolutionary – will be heard for the first time this Friday in Superior Court. (Case No. 34-201080000653)

This case, based on ancient laws called the Public Trust Doctrine, could completely change the game in the delta, shutting down the pumps, if all else fails. It also could affect everyone who takes water from the Sacramento/San Joaquin Delta, which is to say most of us.

“This is potentially a very constructive lawsuit, exactly the kind that needs to be brought,” said law professor Brian Gray, an expert on the public trust at UC Hastings. At the same time, said Gray, it’s naïve to think that anybody who uses, diverts or discharges into delta waters could emerge unchanged from such a basic challenge to business as usual.

One major effect of a public trust case would be to establish minimum standards for protection of the estuary – standards that do not yet exist. “The fragmented approach, said Gray, “is rife with conflict and it clearly hasn’t worked.” If this case works as its proponents describe, “it will be a law that establishes an environmental baseline” for recovering the health of the delta.

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Courtesy of California Spigot.

Sweeping, and fundamentally simple in outline, the new case reflects the intense frustration experienced by environmentalists who have been fighting for years to control over-pumping of water from this most valuable estuary, one of only a few of its kind in the world, and by far the largest source of water in California.

“Some of us are getting older. We don’t have a lot of time left,” said Michael Jackson, lead attorney for the plaintiffs. Jackson lives in the rural northern California town of Quincy and is an officer of the first plaintiff, the California Water Impact Network (C-WIN). He’s been at this kind of work since he was in his thirties. He is now 65. He said a major aim of the action is to broaden the legal base on which to fix the delta, from protection of a single species, like smelt, to the entire estuary. As for shutting down the pumps if violations do not stop, it may not be the best outcome, but “we have to ask for it,” he said.

Carolee Krieger of the California Water Impact Network
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Along with Jackson is the founder of C-WIN, Carolee Krieger, a grandmother of mixed Polynesian background whose adult life has been spent fighting big water interests. Like Jackson, Krieger has been at it from the 1980s, launching one legal challenge after another from her three-acre estate in Santa Barbara. She is in back of all three lawsuits. But the public trust case touches her most deeply.

“Water is the lifeblood of the planet. If our generation doesn’t do this, we won’t have a California we want to live in, for our kids and grandkids,” she said.

A descendant of the Hawaiian monarch, Kamehameha I, through her mother’s line, Krieger grew up with the notion of Aina, a Hawaiian term which means “power of the land.”

“I have felt strongly about this since I was a child,” she said. “Hawaiian culture has always seen itself as a steward of the land. You can’t own the land; you can only take care of it.”

And take care of it, she does, in a tropical rainforest she has created in Montecito near Santa Barbara. Under a canopy of oak and sycamore trees that provide shade while retaining moisture, Krieger has built an Hawaiian paradise of trees, plants, flowers and birds, interspersed with her own ceramic sculptures. She maintains a chicken coop, which her husband calls a “cathedral for chickens.” The sides of the coop rise into the trees high above while peacocks preen under its arches. “You can have wonderful gardens without a lot of water,” said Krieger, who composts everything and feeds it back into the earth.

The Cathedral for Chickens

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Courtesy of California Spigot

Krieger got her first big taste of power politics around water in 1991 when Santa Barbara County signed on to help pay for an extension from the new California Aqueduct next to Highway 5. The 144-mile extension was supposed to supply water from the State Water Project to the central coast during dry periods. The hitch was that water isn’t available from the delta during droughts and when its wet, Santa Barbara doesn’t need it and can’t store it. Now the county water agencies are selling bonds to pay off the debt because they can’t raise enough money from water use. “That’s like using your credit card to pay your mortgage,” said Krieger.

She said Santa Barbara was suckered into voting for the project by lies about its cost and its reliable yield in terms of water. “That was my first taste of the corruption that is possible around water,” she said. “I knew (this deal) was bad. I just didn’t know how bad.”

Four years later, Krieger found herself sitting alone as a volunteer in a small out-of the way meeting while water agency officials first reported results of the Monterey Agreement, one of the biggest water deals in the state. The deal was “publicly reported” in the tiny coastal town of Buellton, but “I was the only member of the public there,” said Krieger. She got the word out as quickly as she could and called a meeting in her carport. “It only takes a few of us to make a difference. I think of that all the time. I know I am doing the right thing with my life.”

A fierce fighter in the water world, Krieger helped launch the first legal challenge to the Monterey Amendment in 1995; then, when the courts ruled for the plaintiffs in 2000, she walked out on what she considered an ineffective settlement and formed C-WIN to lodge two more suits. But even that was not enough. As pumping continued and accelerated through the decade, it looked as though the alliance between state water officials and big time water contractors in Kern County and Los Angeles could not be stopped.

(A recent example of profit-making schemes would have water from the Kern River, a notoriously unreliable source, laundered through the Kern County Water Bank, thereby becoming a reliable source – based on state-supplied delta water.(See page 39 of "Saltworks Water Demand Supply Summary report) While such transfers are badly needed for helping southern California during a drought, in this case, the transfer would allow a developer to build 12,000 new homes on a salt flat in San Francisco Bay, a plan so unsustainable that they would have to build a sea wall to keep out rising ocean levels.)

In 2005, water environmentalists in California watched in dismay as populations of one species of fish after another crashed. Jackson and Krieger knew they had to find a better way to make a difference and began to construct a public trust case for the delta, something Jackson had been thinking about for thirty years.

Basing a lawsuit on the ancient doctrine is rare. Only a few have been won, but when they are successful, a public trust case transforms the relationship between private and public interests in regard to natural resources. Such a ground-breaking decision was made by the California Supreme Court in 1983 to preserve Mono Lake near Yosemite. The Court ruled that the Los Angeles Water District had to stop taking water from the streams that fed Mono because the lake was being irreparably damaged by the diversions. The current delta lawsuit is based on that decision.

As it has evolved since Roman times, the doctrine preserves certain waterways for use by the public, setting up a fundamental right that cannot easily be restricted by private ownership. Such rights include use of lakes, streams, tidal lands and other natural resources linked to water.

In the current lawsuit, plaintiffs are suing California’s water agencies: the State Water Resources Control Board (SWRCB) and the Department of Water Resources (DWR). In their complaint, they charge that water officials have violated the public trust by allowing so much water to be pumped out of the Delta that fish and wildlife, aesthetics, recreation and water quality are being damaged or destroyed.

They also say that state water agencies have ignored their own regulations in allowing temperature and salinity levels to rise in the Delta and have violated California’s Constitution requiring reasonable and beneficial use of water.

If these failures are not corrected, the pumps must stop, according to the complaint by C-WIN, the California Sportfishing Protection Alliance (CSPA) and AquaAlliance.

The case will open Friday, March 25, 2011, with a request from the state that the case be dismissed because it doesn’t include the Federal Government as a defendant. (The Feds run the Central Valley Project that also pumps water from the delta). Asked what he will do if the case is dismissed by Superior Court Judge Michael Kenney, Jackson said, “We will just have to refile it.”

That wouldn’t be the first time and maybe not the last. Failing is not an option for these water warriors.