Judge questions overdraft of Paso Robles basin

January 22, 2016


A North County group of landowners seeking adjudication of water rights have gained a significant foothold in their quest to acquire “quiet title” to their properties overlying the Paso Robles Water Basin. Ruling tentatively in a case brought by Paso Robles vineyard owner Cindy Steinbeck and 200 other individuals and entities, San Jose Superior Court Judge Peter Kirwan wrote that Steinbeck’s group has “met the burden of proof” of conditions for acquiring quiet title.

In addition, the court determined that there is no proof to the county’s claim that the Paso Robles basin is in overdraft.

In 2013, the San Luis Obispo County Board of Supervisors enacted an urgency ordinance that limits water use over the basin. A “quiet title” judgment would stop the county’s ability to limit reasonable water use by property owners.

Defendants in the lawsuit — including the county of San Luis Obispo and Paso Robles — failed during this initial phase of the case to disprove key assertions posed by Steinbeck’s group in seeking quiet title.

Cindy Steinbeck

Cindy Steinbeck

The judge upheld Steinbeck’s evidence which he said satisfied three “burdens of proof” –ownership of property; demonstrating that the plaintiffs’ properties overlie a source of percolating groundwater; and proving that water purveying defendants such as the county and the city of Paso Robles are pumping from the same groundwater source as the plaintiffs.

Defendants in the Steinbeck lawsuit include San Luis Obispo County and the county Flood Control and Water Conservation District; Paso Robles; San Miguel Community Services District; Atascadero Mutual Water Company; and Templeton Community Services District.

California law defines categories of water rights to an underground basin supply as “overlying, appropriative, and prescriptive.” An “overlying” right  is the property owner’s right to take water from the basin beneath the owner’s land for reasonable use. The right of an “appropriator” depends on the actual taking of water, and allows only the taking of “excess” or “surplus” supplies, according to established law.

“An appropriative taking of water which is not surplus is wrongful,” Kirwan wrote.

Attorneys for the public agency defendants unsuccessfully argued that they have prescriptive rights to basin water — the right to use the property of another, while having no ownership interest in the property.  Prescriptive rights require one to have made “open and notorious use” of the property (in this case, basin water under the plaintiffs’ land) for more than five years during a period of overdraft, thus bolstering a claim to a permanent right to that water.

No public claim of an overdraft in this county was alleged before 2013, so up to now there has been little perceived need for a clear definition of basin users’ individual rights.

Steinbeck’s lawsuit evolved against a background of intense planning by a coalition of large landowners hoping to form a tax-supported water district in answer to an alleged overdraft of the basin, the largest west of the Rockies. Those groups, calling themselves Paso Robles Agricultural for Groundwater Solutions (PRAAGS) and PRO Water Equity, have argued that the basin is endangered because of over-pumping by public agencies, large ranchers, and grape growers. Kirwan’s tentative ruling might eventually compromise the foundation of this claim.

Boundaries of such a district, if approved by voters this year, would overlap the properties of the Steinbeck plaintiff group.

Kirwan wrote that some co-defendants “claim an overdraft (of the basin) exists” with no proof of such an allegation. (The overdraft issue is not incorporated in the current litigation.)

The opinion by Kirwan casts a bit of a shadow over plans for the controversial water district, calling into question the validity of the widely-circulated claim of an “overdraft” of the Paso Robles Water Basin.

On the heels of Kirwan’s decision came a press release from the state Department of Water Resources (DWR), a “final” listing of water basins in California which are said to be in overdraft, and including the Paso Robles basin. “Proof” of the Paso basin’s decline has been based solely on the assertions of county officials.

Steinbeck said the DWR announcement is politically motivated.

“You bet it is,” she told CalCoastNews Thursday. “And it’s because our lawsuit is going so well. They (the defendants) are trying to apply political pressure anywhere they can, to divert our efforts.”

Steinbeck said she is “looking forward” to litigation settling the question of a basin overdraft.

The basin’s most notable decline lies directly under Paso Robles’ city limits. The city, however, despite its apparent over-pumping from the basin, will not be part of any future water district.

Kirwan noted that defendants San Miguel, San Luis Obispo and Templeton “deny the existence of an overdraft, which is the key element” in the litigation.

“Without an overdraft, there is no claim to prescriptive rights,” Kirwan wrote.

Prior to the filing of the quiet title lawsuit, Steinbeck noted in an email to members of the overlying landowners’ group Protect Our Water Rights, that representatives of the two pro-district groups — PRAAGS and PRO Water Equity — were hiding critical information from the public.

“What they are not disclosing may seriously impact your property rights, as well as the financial value of your property. We must stand together to protect our groundwater rights,” Steinbeck wrote at the time.

Steinbeck’s group owns 653 separate North County parcels totaling nearly 20,000 acres.

Neither Richard G. Zimmer, the plaintiffs’ attorney, nor Jeffrey V. Dunn, defendants’ lead counsel, had returned requests for comment at publication time.

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Blackburn claims that what happened in the San Jose court, “casts a bit of a shadow over plans for the controversial water district…” The facts are that they are two independent activities. The Quiet Title action is just getting underway and it will be several years before anyone knows what will happen. The SGMA law says we must have an agency in place by June of next year to run the rural areas of the Paso basin. If we refuse to establish local governance and agree to fund it, the State will intervene by the end of next year.Voting No on the funding and the district means you are okay with the State telling us what to do, THE STATE DOES NOT NEED OUR PERMISSION TO COME IN HERE AND IMPOSE EXORBITANT FEES FOR THIS PURPOSE.Read the letter for yourselves at http://www.pasobasin.org.

jacksprat, have you heard of the County Flood Control and Water Conservation District. Right now they have oversite of the basin along with the Board of Supervisors who have gotten us into this mess. They need to do their job and stop pandering to money grabbers!

Put your property in this district but leave the rest of us alone!

The State just did tell you what to do. It’s call SGMA. Under the state, meeting SGMA is the individual’s responsibility. If there is a problem, the state will focus like a laser on the 300 big vineyards who pump 90% of the water, not the 3,700 di minimis users who pump 3% of the water and are considered exempt by the state.

Under the AB 2453 the big pumpers are trying to make it a collective responsibility with their search for “supplemental water” to solve their problem at everyone else expense. We will just say NO!

Perhaps it’s time to revisit “Cadillac Desert”, by Marc Reisner

In reading this, it would seem that the judge did nothing except validate the merit of the plaintiffs to actually pursue Quiet Title by meeting those three conditions.

What is really scary to some of us who wouldn’t otherwise be involved is the plaintiffs claiming that because there is water”percolating” through their property that eventually ends up in the Paso Basin they are part of the basin. Water that touches my property may someday end up in that basin so it sounds like they are setting me up to be a part of adjudication when I may not otherwise be involved!

It’s mighty neighborly of them to drag in the whole damn watershed.

QT does not work that way, it is protection against claims, not making any claims other than you have a primary right to use the water under your property. If you get dragged into adjudication, it will not be by the QT filers unless you are the one making a claim against them.

From the start it looked like the “whole damn watershed” was going to be dragged into adjudication by the County and at least the City of Paso Robles looking for a prescription. The QT filers have set up some defenses and warned you to do the same neighbor before it was too late. You ignored them to your own peril.

I don’t think many people realize that all the defendants of this suit entered into a legal and binding contract with another group of landowners over 10 years ago. It can be read here:


They agreed not to ever declare an overdraft of this basin. Both sides of this current lawsuit know about it and neither are talking about it. Quiet title is one of the first dominoes to fall that will start an adjudication. The defendants aren’t just going to walk away from the precious groundwater that they have been pumping for so long.

Even if this lawsuit ended tomorrow and Cindy won, there is still regulation coming at the basin residents like a train. SGMA. The state Judge hasn’t and won’t tell them they are not going to be subject to this new STATE LAW. Every Basin and everyone in each basin is subject to this. The timeline of requirements is just slightly different, it has been accelerated for basins listed by THE STATE as being in critical condition.

The for profit pumpers want and need supplemental water. The small landowners want protection and not to be subject to anymore fees and regulation. Cindy wants her rights upheld and to stop the pumping by the municipalities. EVERYONE wants to avoid WATER BANKING and EXPORT/SALES.

Everyone in that basin is in that basin together. Everyone is going to pay something at some point.

“Everybody Gets A Haircut”

All the QT filing did was to force the cities to show their hand prematurely. If the city and county were not interested in claiming a prescription they would have disclaimed at the very beginning of the law suit and you would be paying nothing and nobody other than the QT filers and the court would be involved.

Too bad the people in this lawsuit seem not to care that everyone in the basin will be drawn in to the full adjudication when it comes. It won’t stop with Quiet Title. It will be impossible for the judge to determine priority rights if everyone isn’t involved. We’re already paying for the suit through our taxes, and then we’ll be paying to defend ourselves. And meanwhile, no one will be exempt from SGMA so we’ll be paying for that too.