Paso Robles Basin was not in overdraft, county staff admits

Supervisor Bruce Gibson

Editor’s Note: For several years The Tribune reported that the Paso Robles water basin was in overdraft while promoting additional misinformation that has cost local taxpayers million of dollars. Now, the truth.

By DANIEL BLACKBURN

A San Jose jury’s recent decision following a four-week water rights trial may have a lasting impact on future big-project development plans in north San Luis Obispo County.

The trial’s first phase was the culmination of lengthy and costly litigation pitting a conglomerate of heavily-funded county and governmental agencies against local private landowners in a courtroom battle centering around one word: “overdraft.”

The decision “protects the groundwater rights of landowners from government taking without compensation,” wrote Cindy Steinbeck in a prepared statement following the trial. Steinbeck helped organize the more than 1,000 private North County landowners who filed the lawsuit.

Their adversaries included six defendants: the county of San Luis Obispo; San Luis Obispo County Flood Control and Water Conservation District; city of Paso Robles; Atascadero Mutual Water Company; Templeton Community Services District; and San Miguel Community Services District.

Object of the conflict: proprietary rights to dependable water supplies from one of the nation’s largest aquifers, known as the Paso Robles Basin.

Competition for this water has increased at an accelerated pace over the past two decades. New, government-permitted development of housing tracts, high-density housing,  hotels, golf courses, and large commercial enterprises has placed ever-increasing pressure on the basin.

That growth eventually began to threaten more established, traditional uses of water, provided largely by private wells for homes, gardens, farms, ranches, agricultural crops, and wineries.

California’s constitution requires water resources be put to “the highest and best use” to provide water users with as much water as possible, while prohibiting unreasonable and wasteful abuse.

Groundwater use can be lawfully restricted by the government only in the event  of severe depletion of the basin’s supplies — an overdraft.

In 2005, county officials formally agreed to notify the public if the basin was in overdraft; that agreement remains in effect today.

Despite the absence of such a notification, the county’s Board of Supervisors enacted in 2013 an “emergency ordinance” limiting landowner’s pumping to a fixed, rather than flexible, amount, according to Steinbeck. The ordinance adversely impacted growers who required water amounts corresponding to the crops being irrigated.

“The landowners became concerned that the ordinance was being used by the county to take away the critical and necessary water rights of landowners provided by California law and the state constitution,” wrote Steinbeck. That concern led to the landowners’ lawsuit, known as a “quiet title” action.

“The governmental entities [the defendants] confirmed they were trying to take landowners’ groundwater rights based on a legal claim called ‘prescription,’” noted Steinbeck, adding that “for the first time in California history, landowners were given an opportunity by the court to be heard in front of a jury.”

Loosely translated, prescription means that entities other than landowners claim to have acquired water from the underground aquifer based on “open, notorious, hostile and adverse use uninterrupted for at least five years,” according to state law.

At issue during trial was the question of the basin’s overall health, and whether it was in a situation of overdraft at any time since 2003.

A 2010 article in The Tribune incorrectly claimed the basin was in overdraft. That wasn’t true, according to trial testimony by Courtney Howard, an employee of the county’s Public Works Department.

But a report prepared by the county’s Planning Department four days after the article’s publication wrongly referred on two occasions to the basin’s “overdraft.” That inaccuracy remained publicly uncorrected and eventually widely accepted, to the point where the state of California also deemed the Paso Robles groundwater basin in overdraft.

Misinformation about the overdraft was recognized as early as in 2010, according to an email string between SLO County Supervisor Bruce Gibson and then-SLO County Public Works Director Paavo Ogren.

In the email string, Ogren and Gibson agree that even though the basin was not in overdraft, “it’s not a bad posture for a government official to take.”

County officials sought and received grant monies based on the false claim that the Paso Robles basin was a high-priority basin because of the alleged overdraft, when it should have been listed as a mid-priority basin.

During the trial, plaintiffs accused county staffers of manipulating the basin’s safe annual yield number, established in 2005 at 97,700 acre feet. After the lawsuit was filed, county staffers placed the safe annual yield as set in the 2005 report at 92,000 acre feet to help support assertions of prescriptive rights the county sought.

Steinbeck said governmental entities’ officials’ testimony at trial that an overdraft existed was “completely inconsistent” with their public representations  that the basin was not in overdraft.

The jury’s decision complicates future large-scale developments in the North County, because permitting would require a proven and dependable water supply.

Next trial phase will determine the limited amount of prescriptive rights available to the county government defendants.

“The jury verdict has proved that landowners can stand up to secret government attempts to take their water rights,” wrote Steinbeck.

 

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