Who owns the water? That’s the
essential issue in a controversial plan to pump 26,000 acre-feet of groundwater over two years and sell it to a water district that runs from western Merced County into San Joaquin County.

The U.S. Bureau of Reclamation approved using the Delta-Mendota Canal to transfer water pumped from beneath 4-S Ranch Partners LLC and SHS Family LP to the Del Puerto Water District. Valued conservatively at $600 an acre-foot, the transaction could net ranch owners Steve Sloan and Stephen Smith and their partners $15 million or more.

Twelve pumps on Sloan’s 4-S Ranch and two on Smith’s neighboring ranch would extract the water. Since most of it would flow to other counties, there’s little opportunity for that water to replenish the aquifer from which it was pumped. Since it is almost a certainty that the aquifer also underlies neighboring properties, nearby farmers are concerned. They worry that high-volume pumping will draw groundwater away from their wells, which they’re counting on to keep their trees and crops from dying.

Merced farmers have always combined river water and groundwater to irrigate crops, so those in the irrigation district have collectively invested in making their groundwater supply more sustainable. But there’s no realistic way to protect the groundwater they’ve conserved.

Laws in most California counties treat groundwater like a mineral that stays put. But groundwater moves around, flowing vertically and laterally toward a pump. And since most aquifers are vast, they can span many properties. That means whoever owns the deepest well or has the strongest pump can draw groundwater from beneath neighboring ranches.

No individual can sell surface water. That’s because the state actually owns all California surface water, granting only the right to use it. Starting in the 1880s, those rights were given to public irrigation districts, who divvied them up to member farmers. Those rights are enshrined in laws that go back to the 1850s, protected by lawyers standing guard over them like growling pit bulls. The state can’t break those laws, but it does encourage transfers.

Groundwater rules are different. Its use is essentially unregulated, except in a few urban counties. Virtually every rural county considers groundwater the property of the person with the pump. If that pump sucks water away from neighboring wells, well, that’s unfortunate.

Bob Weimer doesn’t mind sharing groundwater. Last year Merced Irrigation District pumped heavily so growers in Planada, LeGrand and El Nido could irrigate, he said. “We shared water within our district, taking our aquifer down to help those other growers.” This year, he said, there wasn’t enough, despite conservation efforts.

“We put in programs cutting back on flood irrigation, putting in retention basins to protect the aquifer,” said Weimer, who farms near 4-S Ranch. “And now you have somebody who comes along for private gain and pumps water outside of the aquifer.”

But not far outside. The 4-S water is destined for Del Puerto Water District, which has 9,000 acres in Merced County and whose growers are desperate to get it. To them, the groundwater sale is nothing less than salvation. They’re grateful and willing to pay.

The problem isn’t sharing water, it’s who profits from it.

If Del Puerto were buying surface water from an irrigation district, the money would go to the district and benefit all its members. But private groundwater sales benefit only the seller.

That’s why farmers — generally conservative and often downright disdainful of government regulations — might soon welcome state intervention. The legislature soon will consider bills for establishing state guidelines if not rules. Besides, they might not have a choice.

A recent case in Siskiyou County, if it survives appeal, could change the groundwater legal landscape. After overpumping lowered the Scott River, a Superior Court judge ruled that groundwater feeding the river belonged to the public and not solely to those who owned the pumps. It’s entirely likely similar challenges are being prepared to protect the Merced, Tuolumne and Stanislaus rivers.

Water is water, except in a courtroom. In times of scarcity, it needs to be shared, not exploited.

Merced (California) Sun Star,

Aug. 1