Water Rights

January 16, 2016 / Monterey Herald

Groundwater Agreement Illegal

By Bill Hood, Guest commentary

In a recent issue of The Herald, Jim Johnson reported on a “deal” reached between Cal Am, the Castroville Community Services District, the Salinas Valley Water Coalition, the Monterey County Farm Bureau, and Land Watch, whereby the utility will transfer a guaranteed amount of desalinated water whose intake source admittedly contains some amount of water extracted from an existing Salinas Valley groundwater aquifer.

The “deal” is heralded as a great step forward by the participants, as well as others, such as a spokesman for the Peninsula mayors water authority, on the grounds that the arrangement provides that water extracted from the groundwater basin stays in the basin, thus avoiding concerns regarding water rights.

It’s too bad that they are all wrong.

Consider These Facts

  • A 1975 California Supreme Court decision stated that, once a groundwater basin reaches a condition of overdraft, no new “appropriative” uses may be lawfully made;
  • An August 2015 Bulletin issued by the California Department of Water Resources identifies a northern segment of the Salinas Valley groundwater basin, from Moss Landing to south of Salinas, as critically overdrafted;
  • A report issued a year earlier by the California Water Foundation concludes that “groundwater basins in the Monterey and Salinas Valley are in a state of long-term overdraft”;
  • A person or entity extracting groundwater and who is not an “overlyer” (meaning does not own the land directly overlying the basin at the point of extraction) is considered an “appropriator”; and
  • Cal Am, who is neither the owner of the land overlying that part of the Salinas Valley groundwater basin where it will be extracting source water for its desal plant nor has ownership of that water, thus becomes a “new appropriator”; and
  • The Castroville Community Services District, as a public agency, also owns no land or rights to the water, and upon delivery of the water would also be classified as a new appropriator.

As a new appropriator, by law, Cal Am (nor the CCSD) cannot legally go forward with what is proposed.

That is certainly thought-provoking. It certainly raises some questions as to the extent the organizations negotiating with Cal Am did their due diligence.

The representatives of those organizations are all very intelligent and respected persons. Some have been exposed and involved with water supply issues for many years. So it is surprising that such an agreement could go forward, seemingly based alone on a belief that all the water extracted would be returned to the groundwater basin, even if that were the case, a new appropriation would be illegal.

Perhaps the organizations were at a disadvantage by not having sought appropriate legal advice from water rights specialists. There is no question that Cal Am has access to that option. However, when mistakes are made, even those with unintended consequences, they must be corrected when so much is at stake. Failure to do due diligence, while perhaps understandable, is still no excuse. It is in no one’s short- or long-term interests to actually implement an illegal agreement.

Bill Hood is the former executive director of the Association of Monterey Bay Area Governments. He lives in Carmel and Columbus, Ohio.