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May 13, 2014

Modesto Irrigation District simplifies local water transfers

On split votes Tuesday, the Modesto Irrigation District board made it easier on several fronts for farmers to buy and sell water locally. But participants still might have to provide some private well information.

On split votes Tuesday, the Modesto Irrigation District board made it easier on several fronts for farmers to buy and sell water locally. But participants still might have to provide some private well information.

MID management backed off considerably from stringent transfer rules proposed three weeks ago, and the board majority on Tuesday made another huge concession by erasing this week’s application deadline. Rather than pinpointing by Thursday how much water would be transferred in individual deals between farmers for the entire season, farmers can submit staggered requests by deadlines of June 1, July 1 and Aug. 1.

Board members Jake Wenger and Larry Byrd opposed the staggered deadlines to avoid burdening district staff, which must scramble to manage two new transfer programs offered to help ease drought conditions. But they were outvoted by board members Paul Campbell, John Mensinger and Nick Blom after several pleas for more flexibility from farmers and their lawyers.

“The flexibility of adding dates is important to the farming community,” said Modesto nut farmer Ron Fisher. For example, he said, growers must apply more water during times of unseasonably high temperatures, such as this week, and cannot possibly predict such conditions months in advance.

The other high-interest vote, regarding well data, went against the wishes of farmers in Tuesday’s audience.

Three weeks ago, the staff proposed that transfer participants submit well information such as pump size, depth and gallons-per-minute capacity, prompting an outcry from customers and lawyers who said such rules would be punitive and invade privacy. So, the staff toned the proposed requirements way down, suggesting that participants “agree to cooperate with MID’s efforts to accumulate and record aggregated private groundwater well pump data.” “Aggregated” data would reflect a grouping of several wells in a certain area, as opposed to just one.

That wasn’t good enough for some, who argued that any reference to wells should be tossed.

Ripon attorney Stacy Henderson called the language “very broad and very scary” for customers fearful of being sued, as some were recently after applying for well-drilling permits with a Stanislaus County agency. She and Modesto attorney Bob Fores said it’s impossible for their clients to know what the district means by “cooperate,” and Fores said providing well data is irrelevant to signing up for surface water transfers.

To counter drought conditions, MID this year is introducing two transfer options: a district-managed, fixed-price program and another allowing open-market sales among farmers who negotiate private deals.

Wenger suggested that gathering data would prove the district is open to the eventuality of groundwater regulation, perhaps warding off lawsuits from people advocating new policy. “You have to have some form of protection in place,” he said.

But Fores said, “By allowing this requirement, you’re almost inviting your customers to get sued,” and Henderson concurred.

“This is my private information. I don’t think anyone needs to know it,” dairy farmer Edwin Genasci said. “I’m just tired of government agencies wanting to know private information.”

On that issue, Blom sided with Wenger and Byrd to overrule Campbell and Mensinger. How the district might go about collecting the data remains to be seen.

With Campbell dissenting, the rest of the board agreed to other changes in water transfer rules, including:

• Farmers can simply attest that they’re following state rules on discharging wastewater, rather than being forced to join a coalition.
• MID will hire a firm to see if applicants legally own affected land, rather than forcing property owners to provide notarized deeds. If the district handles transfers among 450 pairs of farmers, that would cost $4,500.

Lawyers also disputed language in contracts giving MID blanket authority to alter terms.

Modesto attorney Aaron Villalobos called that an “extreme obstacle” to farmers’ ability to plan for crops’ needs.

“This doesn’t engender a lot of confidence in the farmer and seems completely one-sided,” Fores said.

Campbell made a motion to erase the rule, but changed his mind when Mensinger said it could help the district avoid lawsuits.

In yet another strategy for combating drought, the board on June 10 will consider paying farmers to pump groundwater from private wells into district canals. The board will not meet May 27.

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