A judge reversed course and decided that the Oakdale Irrigation District must address environmental concerns before implementing a new fallowing program.
“We’re pleased with the ruling,” said Sacramento attorney Osha Meserve, representing two OID customers who sued to stop the program. “We think the judge’s ruling shows just how bad OID’s management has been.”
It’s unclear whether the water freed up by fallowing already has been moved. OID attorneys had told two judges that the water had not been sold to buyers south of the Sacramento-San Joaquin Delta, while OID General Manager Steve Knell had told his board members the water would be gone before a court hearing last week.
Stanislaus Superior Court Judge William Mayhew had started Wednesday’s hearing by saying he was inclined to stick with a tentative ruling favoring OID. “Make it quick,” he told Meserve when she requested to be heard, and she spent several minutes laying out case law and arguing that the district’s stance – that shipping water elsewhere would cause no harm to aquifers – was off base.
Attorney Tim O’Laughlin, representing OID, declined to rebut, apparently assuming Mayhew was unmoved by Meserve’s presentation. She accused OID of playing a “shell game” by refusing to disclose what would happen with the water and where money would come from to pay about 59 farmers willing to idle 1,343 acres in exchange for money.
Mayhew kept his cards close to the vest. The next day, he granted a preliminary injunction – halting the program – and it became public Monday.
“I’m glad to see the court recognizes that selling all this water has the potential for a negative effect on our groundwater,” said Robert Frobose, one of those suing.
The Bee was unable to reach O’Laughlin or an associate representing the district.
In his ruling, Mayhew noted that OID “failed to respond to the concerns of the (California) Department of Fish and Wildlife.” The agency had warned that OID didn’t analyze how fallowing might affect endangered and threatened species.
“In addition, there is a substantial issue as to whether groundwater levels within Oakdale Irrigation District will be substantially and adversely impacted,” Mayhew added. Plaintiffs had argued that water shipped elsewhere could not seep down here, replenishing the local water table.
Louis Brichetto, the other plaintiff, said the groundwater level in one of his wells has dropped 42 feet since 2007.
OID has drawn criticism for shopping Stanislaus River water to wealthy outsiders while pumping groundwater to augment its total supply; before a tentative deal fell apart, the district had hoped to sell about 9,000 acre feet of water for about $4 million.
Its attorneys had contended that the amount of water freed up in the fallowing program is comparatively small. In a parallel but separate deal, the district reaped $9.75 million selling 32,500 acre-feet of river water down south; those “pulse flows” swelling the Stanislaus the past few weeks were designed to push young salmon toward the ocean, although critics question how well that works.
Mayhew’s preliminary injunction puts fallowing on hold while the lawsuit is litigated, perhaps over the next few months. The lawsuit also asks Mayhew to order that OID pay plaintiffs’ attorney fees, and to throw Gary Osmundson off the OID board.
Osmundson, also a grower, had applied to fallow about 105 acres a couple of days before voting to adopt the fallowing program. That amounts to illegal “self-dealing” because he hoped to put $119,700 in his own pocket, the lawsuit said; without his vote, the program would have died in a 2-2 tie.
Osmundson had said attorneys cleared him to vote because terms of the program would favor him no more than other applicants. In its latest court papers, OID said he is not among the 59 participants. They were to receive 20 percent of proceeds in cash and spend 75 percent upgrading water equipment while the district would keep 5 percent.
Board members Gail Altieri and Linda Santos said in court papers that they were kept in the dark as aspects of the fallowing program changed. Both were elected in November after campaigning against OID’s water deals.
Selling water must be accompanied by “in-depth public discussions, complete candor by OID’s management and total transparency so that everyone understands exactly what is being proposed and precisely who would financially benefit from selling our community’s water,” Santos said in a news statement Friday. “Unfortunately, that has not been the case with (the fallowing) program.”
Garth Stapley: 209-578-2390