Judge questions overdraft of Paso Robles basin

January 22, 2016

By DANIEL BLACKBURN

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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don the beachcomber

Who wants to steal your water? Learn more at: https://www.youtube.com/watch?v=IhpTHqEozLI


Kiler

For the past several weeks a group, including Sue Luft, are pushing Measures A and B at the Templeton Farmers Market every Saturday. They appear to promote the formation of a Water District.

How will a potential passing of these measures going to affect small landowners?


jacksprat

Sue is running for a seat on the district board in the group that registered voters will elect under Measure B. There will be three board members in this group. Add in the 2 board seats in the 1 to 40 acre category and that means the small landowner will be represented by 5 board members. All the people running in this group with Sue own 10 acres or so. They can control the nine member board.


TWEEKSBALMER

Who cares as long I have good red wine and savory beef!


HWTED

jacksprat is a member of PRAAGS who gave us this district and are the primary financial backers of the yes on measure A-16 and B-16. What he says ain’t necessarily so. Google AB 2453 the bill that governs the new district and make up your own mind if it is going to help or hurt you. Spend some time reading through the bill and see exactly what you getting into if you vote for the water district. It isn’t pretty. There is a highlighted copy of the bill on the pr-win website if you don’t have time to read the full bill.


pigsrule

Doh!

The good guys win a round. Law and order prevails, at least for now. We have more water than we know what to do with and that’s why outsiders want to come in and confiscate what is rightly the landowners. Again, notch one for the good guys.


mazin

Key points: “No public claim of an overdraft in this county was alleged before 2013” and “prescriptive rights require one to have made “open and notorious use” of the property for more than five years”, so did not meet the five year requirement for prescription.


Pelican1

“It don’t take no nerve to do somepin when there ain’t nothin’ else you can do.”

The Grapes of Wrath


BeenThereDoneThat

So if it isn’t in overdraft, then the people in the Geneseo and Jardine area’s who’s wells have gone dry, are either imagining it or lying??? Guess in the central valley where it has sank over a foot in recent years just happened to sink and it wasn’t overpumping?


I’d like to know if any of the………..it isn’t happening folks………..are big ag??


racket

Central Valley is a different aquifer, which sounds like it is in overdraft.


As I read the article, the County and the City of Paso have tried to increase their right to the water claiming a prescriptive easement, which requires 5 years of open and notorious use of someone else’s (the landowners’) property. Because the basin has not been declared “overdraft” for long enough, the wheels fall off their Prescriptive claims.


Also, it is the agencies that declared the basin in overdraft. If you do not consider this a case of the fox guarding the henhouse, you are an idiot.


BeenThereDoneThat

Thanks for stating the obvious in regards to central valley. I MORE than understand aquifers thanks. Also you where to eager to get to your gotcha and I’m so smart reply to miss what I said. Do you deny that wells aren’t going dry? Do you think that all these wells just happened to start going dry all at the same time by some reason? Do you understand when you where pumping at 250 feet and now you are at 350 feet or more water is going down??? Point is I don’t give a f**k which agency did or didn’t declare, there is something going on and for one to deny that they are the fool!!!


racket

Sorry to infer you’re an idiot.


There is no refuting that there are shallow wells drying up in the basin.


My point is that the government screws up nearly everything; why would allowing them to control the my private property (my subterranean water) make things better? Particularly, if that same government and I are competing for the use of my resource.


BeenThereDoneThat

Agreed, I don’t want Gov. in total control but I don’t want to see the big farmers (i.e. grape growers) come to our area I’ve lived in for 35 years and preach to me about their rights.


racket

We both need to decide who we’d prefer to squeeze us: the gov or big money.


BeenThereDoneThat

Prefer neither. Wish that everyone could be straight forward and play fair but it always comes down to the Benjamins.


BeenThereDoneThat

I know from your past postings that you seem to be conservative as am I. But I don’t let my politics so BLINDLY, blind me to the fact that something is going on and is changing.


debbie peterson

Basins have differing topography and depth throughout, so it is possible to have an area of the basin in overdraft – where there is high demand or a shallow aquifer – and other areas that have a strong reliable supply.


The Santa Maria Basin is in overdraft so deep on the Nipomo Mesa Sub-basin that water no longer flows to its 5 Cities Sub-basin, but has more than ample water in Santa Maria.


Similar variations occur in the Paso Basin. Where there is large demand, near areas of dense population, or where the aquifer is shallow, there are depressions in the supply. Further east nearer Shandon and Creston there is extensive water.


There is no basis in SLO County for the claim that a whole basin is in overdraft.


pasodowny

Another liability brought to us by SLO-lying lowness, Bruce Gibson.


Jorge Estrada

The beauty of the intended ruling is to protect what is your right and to never fall victim of your rights becoming negotiable at a later date. The cities would love to contest your rights by a vote of the people, the town verses the two ranchers, for example. The two ranchers, if they are smart, would have already protected there water rights by adjudication before politics is allowed to take them. Our constitution protect both the owners and the thieves, this is why owners need to act before the thieves do. It’s that simple.


racket

Brilliant. I agree completely.


adustum

Ignorance is NOT bliss. Especially for people in the legal profession.