The likelihood that a current proposal for a Paso Robles groundwater management district can be created is looking increasingly grim, county administrators and state lawmakers say.
That means county officials and residents probably will have to look at other ways to manage the basin that most believe is facing a crisis of falling aquifer levels and wells going dry.
The state Office of Legislative Counsel has said that a bill by Assemblyman Katcho Achadjian, R-San Luis Obispo, to form a water district with a hybrid board of directors of basin residents and property owners likely violates the state constitution.
A formal verbal opinion from the Legislative Counsel is expected within a week.
The state has no problem with “off-the-shelf” or standardized districts used throughout California. But Achadjian’s bill would create a modified district with details of its structure decided locally through the county’s Local Agency Formation Commission (LAFCO).
The proposal ran into trouble because its nine-member board of directors would consist of three members elected by voters and six members chosen by landowners with acreages of various sizes.
The legal question is whether choosing seats by land ownership rather than by popular vote violates the constitution’s equal protection clause, which ensures that governments treat all persons alike unless there is a substantial reason for treating certain persons or classes of persons differently.
The two North County groups that proposed the district structured the board as a compromise among the competing interests of large and small property owners, as well as the general public.
Four possible options
If the current water district proposal fails, county supervisors say they will take a systematic look at other options for managing the basin.
According to LAFCO and the county’s public works department, there are four basic ways local governments can manage groundwater in California.
The county is already using one option — a countywide water management district overseen by the Board of Supervisors.
A second option is to form an independent water management district specifically for the Paso basin.
The third option is a water management district created by the state Legislature that bypasses county government.
Finally, some counties have adopted countywide water management ordinances. San Luis Obispo County has not yet done this but is drafting an ordinance to ban the export of water from the county.
The success of any management option depends on the major players in the basin agreeing on what needs to done. The details of the governance structure is secondary, said Rebecca Nelson, a researcher with Stanford's Water in the West program, who has done extensive study on groundwater policy in California.
“There is very little to stop California water agencies, in various existing governance forms, from managing groundwater under challenging conditions,” Nelson said.
“The real challenge comes in getting everyone to agree on what to do, and to recognize that something needs to be done — inevitably it involves pain for some parties.”
Deciding which of these options to use will be complicated. County supervisors have said they would be willing to hold workshops or study sessions either separately or with LAFCO.
“Workshops would be an opportunity for people to get their arms around the issue and see what the options are,” said David Church, LAFCO executive officer. “LAFCO is not going to say, ‘This is the district that should be formed.’ That decision would come from the residents of the basin or a local agency such as the Board of Supervisors.”
No such workshops have been scheduled because everyone is still waiting to see what the Legislative Counsel’s final decision is before proceeding, said Supervisor Bruce Gibson, who chairs the Board of Supervisors.
“We need to remain flexible as we move through this process because the goal is to get some sort of governance structure for that basin,” he said.
Forming a water district is an unusual event, Church said. The last water district formed in the county was in 1955, for the small Garden Farms community. Statewide, special legislation in 1990 created the Monterey County Water Resources Agency.
Here is more detail about each of the four management options:
AB 3030 district
In 2012, county supervisors established a County Flood Control and Water Conservation District for all areas of the county outside city limits or other service areas using provisions of the state water code set down in legislation known as AB 3030.
As part of this district, supervisors have adopted a groundwater management plan for the Paso Robles basin. Such districts have a range of powers for managing water including buying, storing, transporting and recycling water.
On Tuesday, supervisors will hold a hearing updating the Paso Robles management plan.
The advantage of such a district is that only a resolution of the county Board of Supervisors is required to create it and it eliminates the need for the additional bureaucracy of an independent water agency.
The disadvantage is that it is governed by the supervisors, three of whom are not North County residents.
There are 20 types of “off-the-shelf” districts that could be created to manage the Paso Robles groundwater basin.
These include community services districts, irrigation districts and a California Water District. These are typically formed by LAFCO.
The proposed water district that ran afoul of the Legislative Counsel was a California Water District modified by Achadjian’s legislation.
A way to avoid such legal problems would be to propose an unmodified, “off-the-shelf” district. Last year, the North County water group Paso Robles Agricultural Alliance for Groundwater Solutions (PRAAGS) submitted an application to LAFCO to form such an “off-the-shelf” district but withdrew it in January in favor of the modified district.
Jerry Reaugh, president of PRAAGS, said the group is waiting to see the final outcome of the modified district before deciding whether to submit another “off-the-shelf” district or pursue some other course of action.
The advantage of such an “off-the-shelf” district is that it would be created by landowners in the Paso basin.
The disadvantage is that the vote to form the district is based on acreage owned rather than by popular vote — which many consider to be more democratic.
Special legislation district
The Legislature has created approximately 13 special legislation districts statewide with enhanced authority to manage groundwater, including controlling pumping if the basin is in overdraft.
Examples of special legislation districts include Fox Canyon Groundwater Management Agency in Ventura County and the Orange County Water Agency.
These districts have local boards of directors elected by voters or appointed by local governments.
The advantage of such a district is that the Legislature has great latitude in creating the district and deciding which powers to give it.
However, these districts are formed entirely by the Legislature without local input by LAFCO. Such an approach probably would be unacceptable to Achadjian, who said he wants local control in the formation of any water district.
“As a former member of the Board of Supervisors, I highly value the importance of local control,” he said. “I came to Sacramento to empower local governments to make the decisions that are best for their residents, not to tell them what to do.”
Thirty counties have adopted countywide groundwater management ordinances using the police powers specifically reserved for cities and counties to give them the authority to protect the health and safety of their residents.
Most of these county ordinances prohibit the export of water from the county, said Paavo Ogren, county public works director. Supervisors have said they will consider a similar ordinance later this year in addition to their other efforts to manage the Paso basin.
The county uses ordinances to deal with a specific problem related to groundwater management rather than to establish overall water policy, Ogren said.
Last August the county passed a two-year emergency ordinance banning new pumping from the Paso basin unless it is offset by an equal amount of conservation.
“The direction we have received from the board is to bring back ordinances on specific issues and use the AB 3030 process for overall water management,” Ogren said.
However, supervisors have also said they want all options to be on the table so the county planning and public works departments will continue to analyze ordinances as a tool for water management, Ogren said.