Elena Bilheimer, EcoNews Journalist
On Thursday, October 27, Friends of the Eel River (FOER) filed a lawsuit against Humboldt County seeking to protect public trust flows in the lower Eel River. In a recent press release from FOER, they explained their requests as well as their reasons behind bringing the issue to Court. They are asking the County to create a comprehensive program to regulate groundwater pumping in the lower Eel River as well as to stop issuing permits for new and expanded well-drilling until such a program is in place. This program would ideally protect the natural resources and beneficial uses of surface water flows as established under public trust values.
In January, the Humboldt County Groundwater Sustainability Agency (made up of the Humboldt County Board of Supervisors) submitted its final sustainability plan to the Department of Water Resources (DWR) as required by the Sustainable Groundwater Management Act (SGMA) of 2014. As was reported by EcoNews in March, SGMA was designed to help protect groundwater resources and avoid undesirable results to beneficial users of interconnected surface waters. SGMA requires that local agencies create a Groundwater Sustainability Plan when a basin is considered a medium- or high-priority by the DWR, with the Eel River Basin having been classified as medium-priority. Despite concerns about the plan’s effectiveness from many agencies and local environmental organizations (including FOER), the Agency wasn’t able to incorporate much of the feedback before the plan’s due date as it spent the majority of the allotted time fighting the Basin’s classification in the hopes of not having to create a sustainability plan. The County ended up being required to submit a plan, and the DWR now has two years to determine if they’re going to accept the County’s plan or not.
While the information gathered in compliance with SGMA is considered in the lawsuit, Alicia Hamann, Executive Director of FOER, wants to make it clear that they are choosing to take legal action because of the County’s breach of public trust values. “This lawsuit is about public trust,” said Hamann. “It’s not about SGMA, but it does use data that was generated as part of the SGMA process. And that’s how we got more insight into what kind of impacts groundwater use is actually having in the lower river.” The idea of public trust comes from the Public Trust doctrine, a legal theory that serves to protect the public’s interest in shared natural resources. As explained in the press release, this doctrine “establishes that the waters and wildlife of the state belong to the people, and that the state and its subdivisions, including counties, serve as trustees of those resources for the people.” With the State and County working as trustees of these resources, they have a duty to avoid and minimize harm to public trust uses wherever possible and feasible.
Hamann insists that by allowing the river to have really low flow or go completely dry because of unlimited groundwater pumping even during extended dry periods, public trust values are being violated by the County. Surface flows in the lower Eel River are “interconnected” with the groundwater, meaning there is a strong relationship between the groundwater and surface water. In addition to negatively impacting the many groundwater dependent ecosystems and species that rely on a consistent flow of surface water (including Chinook salmon and steelhead), not protecting the river’s flows affects many other recreation and cultural values that are associated with the public trust. This includes the Tribe’s ability to go out fishing or a community member’s ability to go stand up paddleboarding. Hamann pointed out that when the river is depleted in the way that it often is during low flow times, those values no longer exist.
It is important to differentiate this lawsuit from the required sustainability plan because while the DWR’s requirements to protect groundwater are well-intentioned, FOER believes they don’t go far enough to adequately protect the values at stake. The timelines set by DWR to enact change are long, oftentimes allowing years of inaction, leaving many species and recreational activities vulnerable to the County’s decisions. “Even if the plan gets accepted, Humboldt County is still going to be managing groundwater in an unsustainable way,” said Hamann. “And that is to say that they don’t actually really manage groundwater use, despite having the authority to monitor groundwater use.” Giving the County potentially decades to create a more comprehensive management plan is insufficient for those interested in preserving adequate flows. “That’s plenty of time for species to go extinct and for people to stop using the river in the way they did,” said Hamann. “It’s not a process that is designed to bring about the rapid change that we really need.”
According to data collected for the County’s sustainability plan, extraction from the lower Eel groundwater basin results in a loss of about 14 cubic feet per second of surface flows during late summer. While this may not sound like much when the river is flowing between 100 and 120 cubic feet per second during wet times, it has a significant impact during critically dry times when the average flow ranges between 15 to 30 cubic feet per second. This means that the amount of groundwater extraction could be taking almost the entire flow of the river in those times. “The negative impacts that result from unregulated groundwater use in the Eel River are really only present during critically dry times,” said Hamann. “When there’s lots of water, there’s lots of water to share. But when there’s very little water, groundwater use can actually remove just about all of the surface flows.”
While the County acknowledges these facts, it stated in January that it did not find evidence that the dry conditions of the river were directly caused by groundwater use. This fundamental disagreement over what the evidence says makes bringing the litigation necessary for FOER. Hamann emphasized that on one side of this disagreement is FOER, the Department of Fish and Wildlife, the National Marine Fisheries Service, the Union of Concerned Scientists, The Nature Conservancy, and the Department of Water Resources, and on the other side is Humboldt County. “Our hope is that the County sees this as a tool to provide them a path to do what they really should have done many years ago when the SGMA process started,” said Hamann.