Stanislaus County appeals ruling that would make it harder for farmers to dig wells

Sean Roddy of Hennings Brothers Drilling Co. is pictured at a job site on Needham Road in Westley, Ca. on Sunday (07-28-13). He is pictured at a mud rotary rig where he and a crew are working on a replacement well for an apricot orchard.
Sean Roddy of Hennings Brothers Drilling Co. is pictured at a job site on Needham Road in Westley, Ca. on Sunday (07-28-13). He is pictured at a mud rotary rig where he and a crew are working on a replacement well for an apricot orchard. Modesto Bee

Stanislaus County will ask the state Supreme Court for a ruling on whether environmental review is a necessary step for a new water well.

In August, a state appeals court overturned the Stanislaus Superior Court’s decision in the Protecting Our Water lawsuit, which sought an injunction against county well permit approvals. The plaintiffs claimed the county was violating the California Environmental Quality Act (CEQA) in approving well permits without considering environmental harm.

Modesto-area farmers are already facing future cuts to water deliveries from a State Water Board plan to leave more water in rivers for fish. They will have a difficult time with sinking new wells for irrigation if the 5th District Court of Appeal decision stands, county officials said.

An environmental review is costly. It can take two years and may be challenged by litigation. County leaders voted in closed session Tuesday to prepare a petition asking the state’s highest court to hear the case. There is no guarantee it will.

“Our best hope is we will prevail,” County Counsel John Doering said. “It does not make sense to conduct (an environmental review) on these types of projects. ... We think other counties also are worried about this decision.”

The original lawsuit was filed in January 2014, during the last drought, after hundreds of county permits had been issued for agricultural wells in Stanislaus County and had sparked concern about the health of aquifers. The plaintiffs included Protecting Our Water and Environmental Resources and the California Sportfishing Protection Alliance.

A second suit targeting more than a dozen growers who had drilled irrigation wells was settled out of court.

In a 2015 decision, Superior Court Judge Roger Beauchesne ruled against the plaintiffs in the first case but chose to monitor the county’s well permitting and drilling data for a year. The plaintiffs appealed to the state appellate court in Fresno, which heard the case and issued a ruling in August.

The 5th District court acknowledged that an environmental review for most well permits is a costly, time-consuming process that might prove unnecessary. But courts are not able to change the regulations in CEQA, the judges said.

“If we were legislators, we might seek a way to provide relief from the potentially high burdens imposed by CEQA. But we are judges, not legislators. The choice is not ours to make,” the court ruling said.

According to the appellate court, discretionary decisions by local government are what trigger an environmental review under the law. Since the county makes a judgment on whether there’s adequate space between a new well and source of contamination, the permitting process is discretionary under CEQA, the court ruled.

Protecting Our Water was created by plaintiff Jerry Cadagan of Sonora, who died in an apparent suicide three years ago. San Francisco Attorney Thomas Lippe represents the remaining plaintiffs.

“I wish the county would just do the right thing,” Lippe said Friday. “The reality is the well permits that get environmental review are the ones where people see a problem and submit comments. That opportunity should be there. It is opening the door for people to have some involvement in the process.”

Wayne Zipser, executive director of Stanislaus County Farm Bureau, said a victory for the plaintiffs would be terribly burdensome for land owners. “Our position is a land owner has the right to the water underneath his or her property,” Zipser said. “Farming is a beneficial use. To require environmental review on every single well is ridiculous.”

Zipser noted that a state law, signed by Gov. Jerry Brown nine months after the suit was filed, requires local agencies to work on sustainable management of groundwater, and that should address concerns about overdrafting.

The county approved an ordinance in November 2014 to prohibit excessive groundwater pumping. Those regulations on groundwater mining apply outside the boundaries of irrigation districts.

The county has issued well permits for years and does not simply hand them out, Doering said. Guidelines make sure wells are built and sealed properly. Well sites close to a septic system or dairy lagoon are not permitted.

In a similar case in San Luis Obispo County, the 2nd District Court of Appeal ruled the opposite — that environmental reviews are not necessary for well permits. Plaintiffs in that lawsuit also have petitioned the Supreme Court.

Doering said an attempt to consolidate the two cases was not successful. Stanislaus expects to file its petition for Supreme Court review within one or two weeks.