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TOM WHEELER:

Welcome to the Econews Report. I'm your host this week, Tom Wheeler, executive director of EPIC. And joining me is my co-host, Scott Greacen of Friends of the Eel River.

SCOTT GREACEN:

Hi, Tom. And just for folks, the former executive director of Friends of the Eel. I'm the conservation director these days. Alicia Hamann is our executive director. But titles aside, we have a really interesting show today. We're going to be talking with three of our compatriots from Sonoma County about the relationship between groundwater and surface water and how the public trust doctrine may require counties, especially in the state of California, to better protect surface flows from groundwater pumping. Our guests today are Drev Hunt, who's a legal director with the California Coast Keeper Alliance; Don McEnhill, who's the executive director of Russian River Keeper; and Rue Ferch, who's a former Sonoma County planning commissioner and a minister at large for good trouble in Sonoma County. Let's start off with Drev. Drev, there's a real gap, as I understand it, between how scientists think about the relationship between groundwater and surface flows and how the law thinks about these issues. Can you talk about that a little bit?.

DREV HUNT:

Sure. Thanks, Scott, and hi, Tom, and Dawn, and Rue. Yeah, so historically, of course, we've come to understand that there's basically one water. All waters are connected, and you have your surface waters flowing in your rivers. It reaches the ocean, evaporates up, comes back down as rain, maybe expands outside the riverbanks as a flood, percolates into groundwater. That groundwater will subsequently percolate back through as springs and other sources end up back in the rivers, flow back down to the ocean, and it goes on and on. It's this water cycle that we all learn about in elementary school, and the more we understand about it, the more that we realize that how we treat water in one part of that cycle has real impacts on how that water is going to do its job in other parts of that cycle, and so it's all connected, and that's obvious. It seems obvious to us.

Well, the law doesn't necessarily treat water in the same way. A lot of it is compartmentalized and siloed. Specifically, the relationship between groundwater and surface waters has never really been understood in the law as something that needs to be treated as one system that's connected and that the impacts in one will and need to be addressed in the other. That disconnect is different between the way the science and the law treats it.

GREACEN:

Pretty recently, it seems like the general position in ag communities has been that groundwater below my land is something I own. It's my private property, which is kind of different than the way people think about surface water. Even if it's surface water flowing through your land, everybody understands that's more of a public good.

HUNT:

Yeah, that's right. Water rights in California and throughout the United States are treated differently. But in California, and in a lot of places, groundwater under your land is considered your water in terms of you can use it for how you wish to use it. And you don't really have to pay a whole lot of attention to the people around you when you use it. The overlying groundwater right is one of the most protected water rights that we have in our legal system. The surface flows, as you mentioned, Scott, is that's true. If the river flows through your land or a stream flows through your land, you have the right to use water from the river a reasonable amount and then return the flows that you don't use back to the river. And you have to always take into account what people downstream of you might need. And you're always thinking about what people upstream are doing. With groundwater, we've never really treated that way in the law. That's caused a lot of problems.

GREACEN:

We started to address those problems in 2014 as a state when California was the last state to implement some form of statewide groundwater management with a law called the quote Sustainable Groundwater Management Act. Jeff, maybe you can give us a real superficial outline of that law and its inadequacies from our perspective as enviros. Sure.

HUNT:

So that's true, in 2014, California joined the rest of the country in trying to manage its groundwater resources. And what the law required was for the Department of Water Resources to identify basins within the state that were suffering from an overdraft condition. Whether it was critical, a high or a medium priority is how they define the different basins. The DWR also had to establish regulations on how they were going to implement SGMA. And what SGMA ultimately required is that the agencies that were responsible for managing groundwater in these specific basins needed to come up with a plan that would ensure sustainability of groundwater resource use by 2040 for the critically overdrafted basins and 2042 for the high and medium priority basins.

GREACEN:

Coming right up, 2042.

HUNT:

Well, you know what? It's one of those things that if you don't, suddenly it's going to be here, but we're getting there. They had to come up with a plan to achieve sustainability by 2040. And in the meantime, they had to ensure that their actions that they were taking weren't going to be causing undesirable results along the way. Those undesirable results included declining groundwater levels, diminished storage capacity, land subsidence, seawater intrusion, degraded water quality. And what we're talking about here today is negative impacts on surface flows and what are called groundwater dependent ecosystems. And you can think of those as like the riparian habitats, the forests that lie in your rivers in the Central Valley, places like that. Groundwater sustainability agencies were developed. They needed to come up with a plan and an implementation plan.

GREACEN:

We've seen these new groundwater sustainability agencies formed in Humboldt County and Sonoma County, other places. But you guys with California Coast Keeper Alliance and Russian River Keeper successfully sued Sonoma County under the public trust doctrine. This follows a line of cases coming out of first the Mono Lake case and a case out of Siskiyou County, which suggests that there are some real protections in the public trust doctrine for surface flows, for fish and wildlife, for recreation that may allow us a way to achieve greater protections for those things. So why did you sue Sonoma County?

HUNT:

Sure, yeah, the groundwater sustainability agencies have these responsibilities in terms of dealing with surface flows and groundwater interactions, but they don't have necessarily the authority that they would otherwise have under SGMA or in any other context to require groundwater users to actually do what might need to be done. That authority comes from different sources. Now, a county that is part of a groundwater sustainability agency could adopt regulations or could adopt some sort of method for limiting use or trying to bring the resource back into a sustainable state and to reduce impacts on surface flows, but SGMA itself doesn't actually require that. And one of the cases that you just mentioned that out of Siskiyou County, the Environmental Law Foundation case, made it clear that SGMA and the Public Trust Doctrine are two different distinct legal approaches towards trying to manage these resources. And so what the Public Trust Doctrine says, and this originated in a case, National Audubon Society from, I think, 1983, that the California Supreme Court said that where you have a public trust use or a public trust resource in a navigable water, which is those are the types of waters that are protected by the Public Trust Doctrine, the regulating entity, the state, the person, the trustee of that resource has a responsibility to protect the public trust uses. And those uses include fisheries habitat, it includes commerce, it includes navigation, all these kinds of things that we think, well, those are our public waters, those are the things that we should be able to all be able to use those waters for. The Supreme Court said that the State Water Board, in that instance, had a duty to protect those uses. And what that means is that they need to consider the impacts of whatever type of diversion from a stream or extraction or taking water out of the river. What are those impacts going to be on those public trust uses? And then they need to take action to mitigate those impacts so far as feasible, which is kind of a little bit of a mushy concept, but it has real teeth, too. It does require agencies to actually consider and mitigate the impacts. SGMA doesn't necessarily require that, but these public trust cases and the Public Trust Doctrine does. In the 2018 decision out of Siskiyou County, what the court there explained is that where there's interconnected groundwater and surface water, and that extraction of that groundwater will have impacts on the surface water and the public trust resources in the surface water, that that duty to consider and to mitigate those impacts applies to whomever is responsible for authorizing that extraction of groundwater. While your groundwater under your land, you have a right to use it, there's still obligations to the entire rest of us that you have to adhere to. And the agency that essentially is responsible for planning how those resources are going to be used, which is, in this case, counties in California are responsible for allowing for groundwater permitting, they have a duty to ensure that that groundwater extraction, whether it will impact public trust resources or not, and if so, to mitigate those impacts.

GREACEN:

Don, you're again the executive director of the Russian Riverkeeper, so you guys sued Sonoma County twice now. After the first lawsuit, Sonoma County issued a set of ordinances that at least started in the direction of protecting surface flows and public trust resources from groundwater extraction, but that wasn't up to snuff. Tell us how you guys approached this and why you saw a need to continue litigation.

DON McENHILL:

Sure. And hello, Tom, Scott, and Drev and Rue. Thank you for having us. Really, when we looked at the proposed updates or revised well ordinance, we saw a whole lot of gaps. The reason we're here talking about Sonoma County is we have an abundance of evidence that well extraction from wells along creeks in our watershed is severely impacting coho salmon habitat. Coho are endangered in our watershed. They were on the brink of extinction. They're being propped up with a captive broodstock program. But essentially, we knew we were already past the tipping point of severe damage occurring to our watershed. So the revised ordinance allowed, one, it didn't look at the cumulative impacts of all the existing wells, and then adding a new well in some of these very sensitive watersheds like, say, Marquess Creek or Mill Creek in the Russian River watershed. The other thing it left the door open to is single family homes were going to be allowed to extract up to two acre feet of water per year. In the last 10 years, we've seen the per capita water use for a household of four decline below a half an acre foot of water. So to us, letting people use three, four times what people are using, if we had three or four single family homes posed in a close proximity on one of these streams where we're losing fish right before our eyes, that was leaving the door wide open to not just continuing the existing impacts that are harming fish, but making them worse. And the county essentially didn't do any analysis. They didn't do their homework, you know, as far as investigating, gathering data, and looking at this from a scientific basis and answering the question, if we limit new wells to two acre feet, will that protect salmon? They never did that analysis. It was really a, well, we'll try this and see if it works approach. The county staff, which did a very good job trying to put forward something that was going to improve the situation, recommended additional steps in the form of adaptive monitoring, committing to collecting data, to be able to answer those questions, which we don't have the answers to. What do we need to do to protect salmon habitat? And unfortunately, the supervisors decided, okay, no, we're not going to do that. We're good here with this revision. And therefore, we're just going to move forward and start issuing well permits again. That's what prompted the

GREACEN:

lawsuit? To punctuate this, what we haven't said yet is that you've won that second lawsuit as well as the first one. There's a pretty powerful ruling out. I think we don't know yet whether the county will appeal that ruling, but on the basis of the Sonoma Court's ruling right now, it looks like the county is going to have to strengthen its ordinances somewhat.

McENHILL:

We're really hopeful they do. We see a pathway to continuing to potentially allow well permits in many areas, and with the information that could be gathered to inform how we need to do that, they can figure out, okay, well, if you want to drill a well in this area, it's barely got any capacity left. If you do these things, or you limit the amount of pumping, then I think based on the data, we can see that that won't negatively impact streamflow to the point where we're killing fish, essentially.

GREACEN:

I want to turn to Rue Ferch. Rue, as a former Sonoma County Planning Commissioner and a long-time advocate for the Russian River and its values, you've been at the front of these questions for quite a while. And some of the numbers here are really quite stunning. Sonoma has more wells per capita than any other county in the state at 45,000. It's issuing some 300 permits a year, about half of which are in those protected groundwater basins Jeff told us about. What are the impacts you're seeing on the ground and in the rivers from excessive groundwater use? And what do we need to do to turn that around and protect those public trust values?

RUE FERCH:

Well, it's an overwhelming question. And first, I really want to thank all of you for the work that you've done for many, many, many years, some decades, and drawing attention to the issue today, because this is an ongoing issue. And I serve on some committees that are statewide water committees, and I can tell you all eyes are on Sonoma County and on this lawsuit because of the precedent-setting nature of the outcome of how this turns out. Relevant to today, I should probably let you know that I was co-chair of the Whale Ordinance Public Trust Document Doctrine Policy Committee that the county organized in order to rewrite the ordinance that was successfully brought to ground in their courts. I also serve and have served for many years on the local SGMA Technical Advisory Committee. So all of this stuff is pertinent and woven together in ways that are meaningful and will have lasting implications in terms of sustainable water supply for everything, for the fish and for the people and for everything that relies on water, which is pretty much everything, including agriculture.

WHEELER:

Econews. We're talking about groundwater management in Sonoma County.

FERCH:

So in terms of what we're seeing, we are seeing in the groundwater basins that were identified, this is the only place we have data. And that's part of the lawsuit problem is we don't have data because the county doesn't require reporting, monitoring or reporting. And that the well ordinance that's in the most current draft also does not require any data collection, except in special permits, which are only the larger wells. So the multitude of wells that you spoke of earlier, there's no data on what they use or the implications of their use on the neighbors or on groundwater or on the surface water, or the fish or anything else. So the failure of the ordinance to require data collection, not to mention the baseline, where are we now would be really good to know.

GREACEN:

It's a truism that you can't manage what you don't measure. My rental house in Arcata has a meter going into it that tells me how much water I use. How can it be that we don't require well users to even measure the amount of water they use?

FERCH:

Well there are economic considerations and there are political considerations that I think both sort of feed into it. That for a residential use to put in a meter and report regularly is ominous. However there is an alternative which would be biannual monitoring. Where's your water table in the spring and where's your water table in the fall and that all you need to do is shoot the groundwater level and find out whether it's going up or down. That's a very simple thing that could be done and was suggested, encouraged through the well ordinance effort and is being encouraged through SGMA in the groundwater basins in the county now.

GREACEN:

I guess the other thing it feels like we need is, in addition to knowing what people are using, is some ability to tell people to use less when necessary. How's Sonoma County looking at that?

FERCH:

Well, somebody else may be more appropriate to answer that question, but my response would be, in the most cynical approach, they aren't. There are people who rely on groundwater for their own private use. I mean, I live on a well and I'm very mindful of how much water I use. And many people are, but not everyone. And certainly not the people who are confident because they have deeper wells, for example. They may not be as concerned or their whole economy may be based on how much water they're able to extract. And so it's a next generation question, not theirs.

GREACEN:

Hmm. Don, Drev, you guys want to weigh in on any of this, please feel free. I feel like we're coming to the implications portion of our conversation.

McENHILL:

Yeah, I think the one thing that the need for measurement is so critical is our drought years. We're in a Mediterranean climate. We're seeing the variability in rainfall patterns go up exponentially year over year. We're in a 2035 climate right now, according to predictions from 10, 15 years ago. So in a good year, like this last year, we had normal rainfall, same as the year before. But in 2020-2022, we had 50% of rainfall. So those are the hardest years on salmon. And we also know that we're having a hotter and hotter climate, such that vegetation is demanding more water. So having something to deal with the variability of water would be incredibly helpful.

GREACEN:

This seems like a good moment for me to chime in with an observation or just to note that Friends of the Eel River has a lawsuit parallel to the case that Coastkeeper and Russian Riverkeeper brought against Sonoma County. Ours is, of course, against Humboldt County, and it's regarding the county's failure to manage groundwater extraction in the Lower Eel, which is one of those groundwater basins that the Department of Water Resources has identified under SGMA as at risk. And the dynamic you just identified, Don, the difference between regular normal rainfall years and drought years is really pronounced in the Lower Eel. In 2022, we had the eel disconnecting again, and this is something that hasn't really been seen in the last century, but it's been seen a couple times recently in our drought years. We're increasingly concerned that unless the county takes some measures to address groundwater pumping in the Lower Eel, we're going to continue to see impacts on Chinook and Steelhead in the Lower Eel. Frankly, we're like the rest of the state, right? We're looking at the Sonoma County case and saying, this looks like the right path here to try to force the county to start to recognize these public trust resources. One of the points I think we probably ought to emphasize is that the public trust doctrine doesn't demand any particular treatment for recreational resources, fish and wildlife. It just says you have to take them into consideration. How's that work? I think, Drev, this one's for you.

HUNT:

Sure, I can, I can answer that. Well, it does, it does demand more than just taking into consideration just to be clear it demands that the that the responsible agency protect the resources so far as feasible, but step one in that is taking it into consideration. And what it, what it requires that, for example, Sigma doesn't necessarily require is to is to really recognize that this groundwater resource is a public resource, and it is something that we all share and we're all responsible for its management. It re and it also requires that that the agencies think about how they're going to make sure that that the public benefits of a healthy ecosystem with full of water are able to be shared by all as well. And so that's what we, when we brought this lawsuit against Sonoma County wanted to make sure that the county was really taking into account. We wanted to make sure that when they were considering where the impacts were that they were really accounting for all of the impacts that all of the cumulative impacts were taken into consideration. And where the county fell short, in our view is in particular is they didn't really project potential future scenarios, and the fact that they were going to be authorizing issuance of well permits up to 300 a year as we were talking about, and hundreds of these within areas that are very sensitive, and that it was, it was their failure to think about those future impacts and really tailor the system effectively to what those impacts might be that was one of the major shortcomings in what they did. I did I did have one other thing to say versus in response to your question that you asked a brew about. And then your, your reaction about, hey, it's obvious I have a meter that meters the water that's coming into my into my house, and when we're when we're when it's obvious to us that we're all sharing something we're willing to be held accountable for how much we're using. But I think that that the way that groundwater has been managed historically is there's a disconnect there and I think that the metering and the monitoring and the developing of the information that would allow people to recognize what they're using, and what would offer regulatory agencies the ability to to manage that more effectively is a critical element of any future groundwater management efforts, especially if we're going to try to protect those interconnected surface waters.

GREACEN:

So the first step is to start to see groundwater not as disconnected, as you said, but as a shared resource that's part of that larger water system we all depend on.

HUNT:

Exactly.

McENHILL:

Yeah, and it's not like this is news to the county. There was a county report done by the agency that regulates wells in the late 70s, talking about how new wells are drying up residential wells in West County around Joy Road. So way back then, this report demonstrated that, okay, we had all these new wells drilled and all these people ran out of water. If that isn't screaming at you that this is a shared resource and that the water you're pumping in your groundwater well isn't restricted to your property, your parcel boundaries, it's like a giant underground lake that everyone's tapping. And so this is not new news, but there's this crazy concern and alarm and worry and this third rail feeling about regulations or restrictions of water use. Oh, we don't want it to impact building or development or what have you. The alarm is misplaced. We should be much more alarmed about running out of water. If you want to stop building, if you want to stop agricultural production, run out of water. We can look to Australia and their millennial drought and we don't want to go there. Where they ran out of water in massive thousands of square miles, no one had water. They turned on their wells and nothing came out for years. And they radically changed the way they manage water. Let's try and get it right before we go over the.

FERCH:

Yeah, the Kleinfelder report back then did three areas of Sonoma County and all of them with the same result, which the Kleinfelder report's analysis was, watch out. It's all downhill from here. And there need to be ongoing studies, which they didn't exist. They didn't follow up with that because a long time ago, before anybody will remember, our water agency was called the Don't Worry, Be Happy Water Agency. Because the less you know, the simpler it is to go forward. I know that's a little joke.

GREACEN:

Downright frightening. Yeah, this is a great conversation. I really appreciate it. All you guys as we're closing I want to ask if people have questions or want to want to find out more How do they find your organizations online if you could just run through that real quick?

HUNT:

Okay, well, California Coast Keeper Alliance is at cacoastkeeper.org, and if you want to reach out directly to me, my email is dhunt at cacoastkeeper.org.

McENHILL:

And similarly, Russian Riverkeeper, you can get in touch with us at our website, russianriverkeeper.org. I can be reached through the email at don at russianriverkeeper.org.

FERCH:

I think as earlier indicated, I'm not affiliated so I'm sure anybody who knows can find me.

GREACEN:

Yeah, and if folks are curious, Friends of the Eel River is at eelriver.org, and you can find me at scottateelriver.org. Just in the, there's one other note I wanna raise, which has to do with stigma and the ongoing question whether it's a real thing or not. There's been a ruling in Kern County that holds basically the implementation of stigma in the one place where it's actually had teeth to be illegal. It looks to me like we have yet to see whether stigma is really going to be implemented fully and usefully. Any comments?

FERCH:

Well, I'd like to note that the chair of the Department of Water Resources in the last two weeks noted that he thought the 2040 year for completion of these plans will be too late. Probably.

McENHILL:

Correct. I would just add that people don't like regulation, they're welcome to challenge it, but my hope is that the overwhelming public good of wisely managing our limited water resources leads to a reversal of that decision in appellate court.

HUNT:

Yeah, what I'll say is, we'll see how it plays out at the Court of Appeal, and we'll see exactly what the scope of the state's authority, and just to be clear, what was at issue is there is that the local groundwater sustainability agency had created a plan that DWR found to be insufficient. The next step under SGMA is for that to go to the State Water Board, and the State Water Board then to impose conditions on these agencies in order to make sure that they do it, that they maybe do effectively achieve that 2040 deadline. If the outcome from this case is that that backstop mechanism for ensuring that we get there isn't enforceable, then yeah, SGMA is not going to be effective. It's not going to work. So we shall see, but here in Sonoma County and throughout the state where there are these overdrafted basins, back to the beginning, the public trust doctrine and this background principle of the way that we all share our common resources is a mechanism to get us there. And it can be a way of holding our government accountable for protecting all those resources that we all depend on. And so the County of Sonoma is going to take another shot at this, hopefully, and hopefully they'll do the analysis that they need to and they'll get it right. Because what they've been doing under SGMA, while maybe potentially effective, isn't necessarily going to have the ultimate result that we need. Thanks.

GREACEN:

And again, we've had Drev Hunt, Don McInhill and Roo Furch with us today. Thanks Tom for hosting.

WHEELER:

Join us again next week on this time and channel for more environmental news from the North coast of California.