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EIR found deficient on Kern Water Bank

Martha Bridegam on
Mar 25, 2014

In a pair of decisions March 5, the Sacramento County Superior Court's Judge Timothy Frawley invalidated parts of the EIR that has been allowing the Kern Water Bank, a major groundwater reserve near Bakersfield, to function under its current legal framework. The water bank's physical operations and environmental safeguards were at issue, against a background that includes conservationists' criticism of influence in the bank's governance by entities associated with food and farming investor Stewart Resnick.

The March 5 decisions in two companion cases rejected several wide-ranging objections to the EIR by the plaintiffs, who were conservationists and neighboring water districts. However, it found the EIR "fails to adequately describe, analyze, and (as appropriate) mitigate the potential impacts of the Project associated with the anticipated use and operation of the Kern Water Bank." The decision in the Rosedale-Rio Bravo Water Storage District v. Dept. of Water Resources case, which was the more focused on neighboring districts, added, "...particularly as to potential groundwater and water quality impacts."

The two rulings dig deep into the fiercely arcane water-and-muscle history of the "Monterey Plus Project," created by the 2003 initial settlement of disputes over the 1994 Monterey Agreement between the State Water Project and its contractors on Southern California water distribution. The California Water Impact Network (C-WIN), among the successful plaintiffs, posted the decisions at https://www.c-win.org/press-room-monterey-plus-amendments.html. The pleadings and decisions are at https://services.saccourt.ca.gov/publicdms/ under case numbers 34-2010-80000561 and  34-2010-80000703. The LA Times' Bettina Boxall had initial reactions and analysis at http://lat.ms/1fK3YXu.

Reached soon after the decision, Carolee Krieger, president of C-WIN, sounded thrilled and a little stunned. She said it addressed kinds of questions she had been asking since 1995, when as an amateur local activist she happened into a meeting in Buellton and heard for the first time about the Monterey Agreement. Although the current EIR "surfaced" in 2010, she said "it took this long for the judge to finally get to the merits of the case" -- and his ruling was for C-WIN's side. "It's just huge."

She knew it wasn't over. She predicted the matter would be appealed and end up before the state Supreme Court. But she said, "You have no idea how happy I was because that's not what I expected. I expected to have to go to the Supreme Court to get a decision like this."

Krieger said additional issues included the "urban preference" -- the question of whether the Monterey Amendments mean the water bank's most essential function is no longer the one originally intended for it: to backstop the State Water Project's supplies to city water systems. More narrowly, she said the decision indirectly affects water supply for large planned developments on the lands of the massive old Tejon and Newhall Ranches. However, Krieger and attorney Adam Keats, who litigated the case for the Center for Biological Diversity, did not comment more specifically about impact on residential development.

Bakersfield Californian columnist Lois Henry, however, suggested in a recent news analysis that the decision might affect Tejon Mountain Village, as its EIR "specifically names water banked in the Kern Water Bank" as a source for its planned residential and business customers. She wrote, "If that water is caught up in some kind of freeze or injunction, what then?"

Asked about consequences of the decision, Keats wrote: "It will all depend on what the court orders in terms of remedies. At this point everything is presumably on the table, from shutting the Kern Water Bank down pending environmental review to business as usual. So it's hard to say right now what effect this will have on any projects being planned or being built. That said, any project seeking to rely on the Kern Water Bank for its water supply should be questioning that supply. But I'm not aware of any such project at this moment."

Attorneys representing Resnick's Roll International Corporation, Paramount Farming Company, LLC and related entities did not comment, except that a Roll Law Group attorney wrote, "please refer all inquiries to the Kern Water Bank Authority." At the water bank, director Jonathan Parker responded by email: "The KWBA is disappointed.  We are reviewing the decisions and our options. In any event, moving forward we will comply with CEQA." As of March 12 he wrote that the upcoming timeline was "Uncertain. There may be a remedies hearing later summer or early fall." (The court has since scheduled such a hearing for September 5.) He wrote that he was not familiar with the residential projects.

Ellen Hanak of the Public Policy Institute of California said, "I'm a little perplexed by the decision." She said the groundwater bank under its current management was among leaders in Kern County, who others have emulated, enabling active storage of groundwater and making the system more resilient. Hence she said, "I don't understand the argument" that the current operation could worsen care for the water supply.

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