Eye On Modesto

VANCE KENNEDY AT MID ON SEPTEMBER 17, 2013

Vance C. Kennedy

Since the last MID Board meeting a lawyer friend of mine was kind enough to call my attention to a report, published in 2011,

which is applicable to the question of what can be done about the grossly over-drafting of the water table in the foothills.  I have left a partial copy of the reference with Pat, your secretary.

I quote, “The common law doctrine of correlative rights regulates the taking and use of groundwater, unless local arrangements apply.  That doctrine limits groundwater pumping to the ‘safe yield’, being the volume of natural and artificial recharge of the aquifer, which is shared by overlying landowners on an “equitable basis” (regardless of their particular uses), and by non-overlying landowners, if there is sufficient water available.”

That last “if there is sufficient water available” is the key.  There is not sufficient water available to support the water drawn by the existing and proposed deep wells.  The rainfall in the foot hills averages in the range 12 to 14 inches of water per year, of which perhaps half contributes to groundwater.  Almond trees being planted require at least 30 inches of water per year, so there is a shortage of about 24 inches of water above the safe yield.   The shortage is being made up by mining ancient groundwater (2,000 to 13,000 years old) in direct conflict with the doctrine of safe yield.  It causes major and continuing drops in the regional water table.  The result is a short time benefit to the County of a large increase in almond production and a long term societal disaster for the foothills region.  Politically, it is a “hot potato”, but must not be ignored, as in the past.  Irreplaceable and extensive damage has already occurred and must not continue.

In sedimentary rock deposits it is well known that the lateral permeability of rocks is much greater than the vertical permeability.  Therefore, when a deep well operates, it can draw water much more easily from the side than above.  That water comes from the neighbors before it comes from the overlying rock.  California is one of two states that have no groundwater laws, but tort law may very well apply, since a neighbor’s property may become worthless as a result of the almond grower’s actions.  After all, if water is too deep or expensive to pump, a foothill house and land is worthless.  It no longer provides taxes to the County or a livelihood to people.

Who is responsible for filing the lawsuit to recover damages due to these deep high-volume wells?  It’s a valid question.  It is my non-lawyer understanding that if the problem is a purely local one, the affected property owner is responsible for handling the suit, but if it is a regional problem, the public authorities have the responsibility.  There is little doubt that this is a regional problem and therefore the County should file suit to stop the pumping and reimburse the harmed property owners.  There is some discussion of this question in the reference mentioned.

I realize that this is outside the sphere of influence of MID, but I thought the MID members might be interested.

A copy of this talk will be provided to the Board of Supervisors, and, as a water agency, you might be interested in following up on the information I have provided.

Part four in the applicable section: UncommonInnovation