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Water moratorium lawsuit transferred out of SLO County

April 23, 2014

water2One of two lawsuits seeking to have the Paso Robles water moratorium ordinance overturned will be decided by a judge in Santa Clara County.

On Tuesday, Superior Court Judge Jac Crawford approved the out of county transfer requested by one of the defendants, the city of Paso Robles. The other parties in the suit agreed to have the case heard by Judge Joseph Huber, a justice noted for his experience in groundwater litigation.

In the suit filed by attorney Richard Zimmer on behalf of several property owners within the Paso Robles Basin, the plaintiffs are seeking to “preserve and protect their overlying groundwater rights” through a quiet title action designed to overturn the ordinance.

Zimmer named the county and four municipal water companies that sell groundwater to customers in San Luis Obispo County – Paso Robles, Templeton Community Services District, Atascadero Mutual Water Company, and the San Miguel Community Services District – as defendants in the suit. Each of the defendants extracts water for use on property that does not overlie the Paso Robles aquifer, the lawsuit says.

The plaintiffs argue that California law gives superior water rights to land owners with property above the basin over property owners outside the basin. The Paso Robles water moratorium ordinance restricts usage to properties dependent on a well while giving priority rights to the county and municipal water companies, the suit says.

On Oct. 8, the San Luis Obispo County Board of Supervisors extended its urgency ordinance that restricts water use in the Paso Robles Groundwater Basin. The ordinance prohibits new development in the Paso Robles basin that uses more water than it saves.

In the second lawsuit, the Paso Robles Water Integrity Network, an association of landowners within the Paso Robles Groundwater Basin, is seeking to have the ordinance rescinded because the SLO County Board of Supervisors “abused its discretion and failed to proceed in a manner prescribed by law when adopting the ‘urgency’ ordinance,” the lawsuit filed by attorney Sophie Treder says.

According to the lawsuit, the county failed to provide enough evidence to demonstrate a “current or immediate threat to the public health, safety or welfare” and did not proceed as required by state law. A hearing on the issue is scheduled for June 4 in San Luis Obispo.


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They better check to see if this new judge was a member of the Boy Scouts.


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Water law is pretty complex. In 2011, I posed some questions about water “water appropriation” to a manager in the State Water Quality Control Board’s Water Rights Division. Here is his brief, but complete discussion of some basics of water rights in California:


“You may be thinking about a “groundwater appropriator”. Diverters who pump “percolating groundwater” generally are classified as either: 1) “overlying pumpers” who hold “correlative” rights to the water or; 2) “non-overlying pumpers” or “appropriators”. “Correlative” pumpers should own land that overlies the groundwater basin and are supposed to share the water equally once the basin’s “safe yield” has been exceeded. This is very much like “riparians” do with water flowing in a surface watercourse.


“Groundwater appropriators” are only supposed to take water that is in excess of the needs of the “overlying landowners”. However, because neither type of diverter is required to obtain a permit from the State of California, some type of court action is usually needed to restrict groundwater pumping. In many cases, the courts have ruled that the “groundwater appropriators” (especially if they are municipal entities) have taken water in an “open and notorious” manner that was “injurious” to the “overlying pumpers” for a sufficient period of time that a “prescriptive” claim of right has ripened. This can enable of junior priority “percolating groundwater appropriator” to obtain a higher priority right than an “overlying pumper”.”


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Thanks for that explanation. It sounds a lot like the situation with easements for old roads and trails crossing private property.


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Very good explanation and let’s not forget that while the municipalities may have earned the benifits of their “open and notorious’ action, as view by the courts, in some cases the reality is that the injured public is on vacation, unaware (not an excuse) or just simply tricked by the media through, lobbied for, avoidance of the total issue. One local example is how the Salinas Reservior was kept out of the the public discussion while our County Board of Supervisors passed of an emergency ordinance that restains the downsteam riparian property owners from their reasonable use of water. Controling the evidence to control the outcome is nothing new.


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But what happens when a city grows and draws more water. Shouldn’t the overlying pumpers at least be able to stop that?


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