Lawsuit to limit Nipomo groundwater pumping tentatively denied

A Santa Clara court has tentatively denied a lawsuit from several South County cities claiming water providers in Nipomo are not complying with an almost decade-old stipulation and judgment to restrict groundwater pumping in the Santa Maria groundwater basin, though final judgment is still pending a hearing in May.

In a tentative ruling Feb. 26, Judge Peter Kirwan denied a request by South County cities to halt new development on the Nipomo Mesa until water providers can import more water, saying the request was not within the court’s jurisdiction. The ruling was contested, but the Santa Clara County Superior Court upheld the decision to tentatively deny the request without prejudice.

The ruling is tentative until both parties meet and discuss basin solutions, and they appear before the court for a hearing May 12.

In his ruling, Kirwan said that although Nipomo water providers did not appear to be complying with a 2008 judgment requiring them to bring in 2,500 acre-feet of supplemental water per year, a court order to limit issuing building permits for already-approved developments would be outside the power of the court.

The lawsuit, filed in Santa Clara County Superior Court on Sept. 29 by the cities of Arroyo Grande, Grover Beach and Pismo Beach, comes as part of an almost two-decade-long legal battle over water rights in the basin.

In a 2005 stipulation and 2008 judgment, a Santa Clara County Superior Court judge divided control of the portion of the basin that rests in southern San Luis Obispo County between two management areas: The Northern Cities Management Area representing Arroyo Grande, Grover Beach, Oceano and Pismo Beach; and the Nipomo Mesa Management Area, which represents the four Mesa water providers, the Nipomo Community Services District, Golden State Water Co., Rural Water Co. and Woodlands Mutual Water Co.

At the same time, the judge ordered the Nipomo Community Services District to build a supplemental water pipeline and purchase a minimum of 2,500 acre-feet of water per year from Santa Maria to help offset new development and decrease groundwater pumping on the Mesa. (One acre-foot of water is equal to about 325,851 gallons, or enough to serve three households for a year.)

The services district celebrated the completion of its first phase of the pipeline project last year after several years of delays. The project is not expected to bring in 2,500 acre-feet of water — the amount ordered by the judge — until approximately 2025.

In their suit, the South County cities claimed that the Nipomo services district had not made a good faith effort to bring in that additional water, and that overpumping in the basin is creating a pumping depression below the Mesa that prevents underground recharge from reaching the Northern Cities Management Group’s portion of the basin.

The motion filed by legal counsel for the three South County cities asked the court to enforce the 2005 stipulation and 2008 judgment. The cities sought restrictions on water pumping and new development in the Mesa area until the Nipomo Mesa Management Group can import 2,500 acre-feet of supplemental water into the area, secure additional supplemental water sources that cover its increased water demand, implement a plan that ensures new water demand does not require groundwater pumping in excess of its 2005 pumping levels, and reverse the pumping depression below the Mesa.

The lawsuit also asked the court to restrict San Luis Obispo County from issuing building projects for already-approved developments that would increase groundwater pumping in the region.

The judge agreed that the Nipomo Mesa Management Area does not seem to have complied with all the requirements of the 2005 stipulation and 2008 judgment, but said the court does not have the jurisdiction to order a stop on all new development. Further, he said, doing so would likely result in litigation from the developers whose projects had already been approved.

“Any attempt to withhold building permits on this basis would impact non-parties who relied in good faith on the approval of their new developments and would likely result in new litigation,” Kirwan wrote in his ruling. “The NCMA (Northern Cities Management Area) parties also fail to establish how the court can order the County of San Luis Obispo to take (or refrain from taking) any action with regard to its powers as a governmental agency (e.g. issuing building permits).

“The relief requested by the NCMA parties goes beyond what is contemplated in the stipulation (i.e. a physical solution), and other steps should be taken first as an attempt to resolve these issues.”

Both management groups were ordered to meet and discuss possible solutions to prevent further negative impacts of groundwater pumping on the basin.

The parties are scheduled to return to court May 12.

This story was originally published March 13, 2016 at 8:35 PM with the headline "Lawsuit to limit Nipomo groundwater pumping tentatively denied."