Bakersfield Californian- LOIS HENRY: Ruling would be uncharted waters for water judge
http://www.bakersfieldcalifornian.com/columnists/lois-henry/x167886601/LOIS-HENRY-Ruling-would-be-uncharted-waters-for-water-judge In case you were wondering, the fate of the Kern Water Bank is still hanging in the balance. Sort of.
Back in March, Sacramento Superior Court Judge Timothy Frawley ruled that the water bank's environmental impact report was inadequate and needed to be redone. The ruling was narrow and pertained only to the bank's operations.
That might seem like a minor technical issue. But at least one of the plaintiffs involved is hoping it's the thread that unravels the whole ownership of California's largest groundwater banking operation.
First, a little background.
Ever since the 20,000-acre bank was transferred to local interests from the state Department of Water Resources (DWR) in 1995, activist groups have been fighting to have it brought back into state hands.
The Kern Water Bank Authority, which runs the water bank, actually is a public joint powers authority made up of six members, four of which are also public entities. They include Dudley Ridge Water District, Kern County Water Agency, Tejon-Castac Water District, Semitropic Water Storage District and Wheeler Ridge-Maricopa Water Storage District. The sixth member, Westside Mutual Water Co., is privately owned.
Though most members are public, Paramount Farms, owned by Stewart Resnick, holds the majority of seats on Dudley Ridge. And Resnick owns Westside Mutual. Together, those two entities own more than 50 percent of the water bank.
Critics say that gives one private individual control over what should be a public facility wheeling and dealing a precious public resource — water.
Hence, entire forests have been ground to pulp for the paper that's been used in the myriad lawsuits against the Kern Water Bank, its transfer, operations, etc.
This latest lawsuit was somewhat different in that it started from friendly fire -- two nearby water districts.
Normally, water districts stick together, but back in 2009, Rosedale-Rio Bravo and Buena Vista water storage districts saw their groundwater levels dropping dramatically and studies pointed to Kern Water Bank operations as the culprit. That was another drought year and demands on the water bank were extreme.
Rosedale/Buena Vista felt the bank was pulling too much water out too quickly, which was sucking their groundwater out from under them.
They sued only on the grounds that the Kern Water Bank hadn't looked hard enough at how its operations would impact neighbors.
"Rosedale was always adamant that we were not challenging the transfer," explained Rosedale's attorney, Dan Raytis. "All we've ever wanted was a full CEQA examination of how the bank is going to be operated. We even said in our complaint that we support the bank's transfer to local interests."
Waiting in the wings, however, was another lawsuit by the Center for Biological Diversity. It touched on similar operational issues as well as asserting that the transfer was illegal.
The cases were combined, creating odd bedfellows of Rosedale/Buena Vista and the Center for Biological Diversity.
Judge Frawley agreed in March that DWR did a poor job of analyzing the water bank's effects on its neighbors and asked plaintiffs for how best to remedy the situation.
Adam Keats, attorney for Center for Biological Diversity, argued to have the water bank shut down and given back to the state.
Rosedale, meanwhile, got together with the DWR and Kern Water Bank Authority and submitted a joint proposal on how the bank could continue to operate while the EIR was redone. (That proposal has some really good things in it, by the way, such as protections for domestic well owners in Rosedale.)
Frawley issued a tentative ruling at a Sept. 5 hearing that sided with Rosedale and shut Keats down. But that could change.
Keats argued during that hearing that the judge could not legally order DWR to redo an EIR on a project it didn't own.
"This isn't a gray area," Keats said.
The agency has to have ownership of the bank if it's going to do an EIR that recommends project operations, mitigations and alternatives.
Though the judge's tentative ruling was adamant that he did not want to revisit the transfer issue, both Keats and Raytis recalled him saying during Keats' arguments: "You've got me rethinking my tentative."
So, what would it mean if Frawley gave the bank back to the state?
Neither Raytis nor Keats really knew. They both agreed it probably wouldn't affect operations in the near term.
But Keats felt a transfer back to the state could reopen a lot of questions.
"DWR would do an analysis on the operations, which it never did before, and the public could be involved," Keats said. "DWR could have the opportunity to see the error of its ways back in the 1990s."
And the water in the bank now? How would that be effected?
"That's a good question," Keats said. "They put water in that bank without a proper EIR. They put it in a high risk bank."
Some of that water, 30,000 acre feet, is owned by Tejon Ranch, which has listed it as part of the supply for its Tejon Mountain Village development.
Which is just one reason Frawley's next move could be very high stakes.
"I think (Frawley) appreciates that he's in uncharted waters," Raytis said.