By Marissa Wenzke Friday, November 21st, 2014

Jason Haas, general manager of Tablas Creek Vineyard, walks up a hill near Paso Robles. That city was one of the first to have a water moratorium. (Bloomberg News file photo)

As the Sustainable Groundwater Management Act sits on the table for 2015, some water wells in the Tri-Counties are already facing new limitations after the Ventura County Board of Supervisors issued an emergency well-drilling moratorium on Oct. 28 with a 4-1 vote.

Since then, many agriculture industry experts and farmers have expressed opposition to the ban, claiming it was enacted through a closed process that lacked stakeholder input. The temporary ban will apply to private and agricultural wells in Calleguas Creek and the watersheds of Ventura, Cuyama and Santa Clara. It is expected to expire once local agencies turn in groundwater sustainability plans, which could take up to six to eight years for wells that are determined to be “high” and “medium” priority.

Citing the emergency drought and rainfall conditions that have been dropping in Ventura County for three years, the emergency ordinance states that depleted groundwater levels have proven the need for a halt to well-drilling.

“Water levels decreased in all basins an average of approximately 13 feet,” the ordinance states. “In some groundwater basins, water levels are consistently, and substantially in some places, below sea level.”

But many Ventura County farmers and advocacy groups such as VC-COLAB — the Ventura County Coalition of Labor  Agriculture and Business — say the board failed to reach out to agricultural interests before attempting to issue the ordinance. Meanwhile, some are saying that a number of the flaws in the ban make it impermissible.

“It’s legally suspect and vulnerable to legal challenge,” said Rob Saperstein, a water law attorney with  Brownstein, Hyatt, Farber Schreck, who assisted in representing farming interests opposed to the ban. According to Saperstein, the well drilling moratorium is flawed in three broad categories, particularly its lack of a California Environmental Quality Act analysis.

“The urgency basis is ludicrous; the CQEA analysis is completely absent,” Saperstein told the Business Times. “And the effect of the moratorium has a potential to limit or completely eliminate the ability of some of the farming entities to exercise their water rights…and water rights are a form of property rights.”

The ordinance states it is exempt from the California Environmental Quality Act requirements because “it can be seen with certainty that there is no possibility that it will have a significant effect on the environment as it includes regulations to protect groundwater resources…” and contains restrictions meant to preserve the environment and available resources. It also states that its urgency, which also exempts it from CQEA analysis, lies in preventing the failure and depletion of current and future wells.

However, the ordinance was not reviewed by the Agricultural Advisory Policy Committee, which is tasked with reviewing such policy before it reaches the board.

“It’s specifically there to do exactly what wasn’t happening, which is to discuss the agricultural impact of policymaking,” Tim Cohen, a farmer in Piru, said of the committee.

County Agricultural Commissioner Henry Gonzales said the board did not notify him about the ordinance prior to discussing it, and the only expertise he gave was during public comment at the Oct. 28 meeting.

“My only input was the two minutes I had to put forth the most information I could,” he said. “Hopefully, the county, in future similar endeavors, will consider not only the agricultural industry, but the commission as well…We should be involved at the ground level.”

However, Ventura County Board of Supervisors Chairman Steve Bennett, who pushed forth the ban, said announcing the moratorium to the agriculture community would have caused a flurry of well permit applications being sent in before the ban could go into effect.

“On every issue, I think you’re seeing us bend over backwards to get stakeholder input,” Bennett told the Business Times. “But with this one, the well applications would’ve just rushed in.”

Within 48 hours of the board announcing its plans to discuss a well moratorium, 37 applications were issued for new well permits.

While Bennett said this fact proves his reasoning, Cohen, who owns Rancho Temescal in Piru, said it doesn’t. With the County government debating a well moratorium that’s expected to go into effect almost immediately, Cohen said, it was a natural reaction for farmers to request permits while they still can.

“I may have money in the bank. But if I know it’s not going to be there Tuesday, I’m going to run to the bank,” he said. “But if you believe in government stability, there’s no reason to run to the bank.”

In the case of the Fox Canyon Groundwater Management Agency, its temporary water well moratorium — Emergency Ordinance E — was adopted in April 2014. Since then, GMA officials and farming interests have met together and are expected to reach an agreement by March of next year that will cut well water usage by 20 percent, according to Lynn Jensen, executive director of VC-COLAB. In a statement, Jensen details how Fox Canyon performed a “stakeholder driven process” that “stands in stark contrast” to the process used by the County Board of Supervsors.

But, according to Bennett, the process at Fox Canyon is not comparable because that agency has the ability to issue penalties for problems such as overuse, while the county does not.

In a letter addressed to Supervisor Bennett, Ventura County Farm Bureau CEO John Krist wrote that the ordinance targets the agriculture industry since it cannot be applied to municipal wells, which are state entities and thus not subject to county ordinances.

“Among the stated purposes of the moratorium is to ‘stabilize groundwater extractions’ in the county’s four major watersheds, but this cannot be accomplished by restricting only one of many categories of pumpers in just a subset of these watersheds,” Krist wrote. “It is unfair to impose the entire burden of attempting to accomplish this objective on farmers and ranchers while exempting urban residents from compliance.”

The letter also stated that while some groundwater basins are falling, “it is incorrect to characterize them all as being in a state of critical overdraft that necessitates immediate action under an urgency adoption procedure.”

It stated that evidence supporting the CQEA exemptions are not found in the record, and the new ban will make the Sustainable Groundwater Management Act difficult to implement due to a loss of trust from farmers.