Water District Warns Kern County It May Be Liable for Damages If Development Approved

By Patric Hedlund
UPDATE—LEBEC (Thursday, May 6, 2010, 5:57 p.m.)—Today, chair of the Lebec County Water Disrict (LCWD) forwarded to us the letter written by their attorney to the Kern County Planning Department and each of the members of the Kern County Board of Supervisors. The text is reproduced here. Our report on the May 2 meeting in which the LCWD board decided to hire the attorney to represent the district follows. It refers to the degradation of quality of water in the area, and the risks of massive drilling to supply 2,000 additional residents. Here’s the letter:

 May 6, 2010
Ms. Lorelei H. Oviatt
Director
Kern County Planning Department
2700 M Street, Suite 100
Bakersfield, CA 93301

Re:Frazier Park Estates Recirculated Draft EIR, Specific Plan Amendment Case No. 136, Map 500; Comments of Lebec County Water District

Dear Ms. Oviatt:
At its recent meeting, the Kern County Board of Supervisors expressed its intention to approve, at its meeting this coming Tuesday, May 11, the proposed Frazier Park Estates development with the 557 residential units plus commercial development, as requested by the developer (“FPE”). FPE has an inadequate water supply for its development, and would have a significant negative effect on the water supply for Lebec residents and the Frazier Mountain High School. For this reason, the Board of Directors of the Lebec County Water District (“District”) has requested that I send this letter reiterating the District’s opposition to the FPE project as proposed.

In order to prove up a sufficient water supply for a major development in California, a developer has to identify his proposed source(s) of water supply, which must pass three (3) tests:
1.The source of supply has to be shown sufficient to supply the new development without significant adverse effects on existing users of the same source of supply. This has to be shown over a 20-year period, including the periods of highest demand and lowest supply likely to occur during that 20-year period, including summer months and severe and multiple dry years.
2.The developer must show he can obtain sufficient water from the source to meet his development’s demands. This involves questions of wells, geology, water entitlements, infrastructure, and physical access.
3.The developer must show he can deliver the water in sufficient quantities to his development. This includes the ability to physically move the water and the legal right to use it where he wants.
FPE flunks all three tests. It fails the second test so badly, it is embarrassing.
In a July 17, 2009 letter from Joseph D. Hughes of this firm, the District provided reports from Kennedy/Jenks Consultants and independent evidence substantiating this conclusion. Even after the developer submitted eight (8) additional consultant reports to bolster his case, he has still failed to demonstrate a sufficient water supply. Attached is the February 22, 2010 letter from James M. Beck, General Manager of the Kern County Water Agency (“KCWA”), concluding that notwithstanding all that paper, the developer has still failed to meet his burden of demonstrating a sufficient water supply. KCWA is Kern County’s water expert and manager; you owe their determination some deference.

The following is a summary of how the developer failed to meet his burden. Then this letter explains that approving FPE and certifying its EIR while deferring the demonstration of an adequate water supply is contrary to California law.

Test #1: The source of supply is inadequate. The sole source of supply for 557 new homes is the East Subbasin of the Cuddy Canyon Valley Groundwater Basin (“East Subbasin”). In relation to the size of FPE, the East Subbasin is short, narrow and shallow.
•FPE’s well will draw down water levels up to 100 feet over two consecutive dry years. Since the East Subbasin is shaped like an inverted triangle, this leaves a large part of its volume dry. This negatively affects many wells in the East Subbasin, including the one FPE proposes to use.
•Short pumping tests showed the limits of the East Subbasin because both the FPE well and the Frazier Mountain High School well suffered significant draw-downs, from which they did not recover. See page 2, second paragraph, of the KCWA letter.
•Developer’s reports show that over a 7-year dry period, the East Subbasin will be 66% dewatered. At this point, all wells in the East Subbasin will be inoperable or stressed.
•Assuming FPE can get water from the East Subbasin when it is 66% dewatered (since the FPE well will likely then be dry) 50-80% of its water supply will come from FPE’s treated wastewater effluent. Toilet to tap. The water quality impacts of this are not analyzed.

Test #2: The Developer has failed to show he has sufficient access to his water supply to serve the FPE development. FPE has only one well, and it has failed its tests. The developer has not shown he can develop additional, functional wells, or otherwise obtain supply to meet his demand.
•In November 2003, depth to groundwater was 145 feet and the well was pumped at 450 gallons per minute (gpm), approximately FPE’s July demand. The well sucked air after less than 24 hours.
•In October 2006, depth to groundwater was only 97 feet. The well was tested for 16 days at 300-500 gpm, but the test was noncontinuous and thus scientifically invalid. Nevertheless, the well hit a negative barrier (a geologic impact that decreases production and/or increases draw-down) after 7 days. The water table dropped 50 feet and both the FPE well and the high school well failed to recover.
•In December 2009 and January 2010, depth to groundwater was 163 feet and the well was tested for 72 hours at 444 gpm. It hit the negative barrier after 18 ½ hours, drew down 40 feet, and both the FPE well and the high school well failed to recover.
•Developer originally said his solution was a second onsite well, which he drilled. However, test results from this well were never made public, and we are now told that the developer destroyed his own well. It must not have worked well. If he can get another onsite well to work, it likely will affect negatively the output of his first well. See KCWA letter, page 2, first paragraph.
•Developer’s consultant Galli determined the sustainable yield of the FPE well is 180 gpm. Since FPE’s July demand is 433 gpm, that leaves a 253 gpm gap. Developer has not identified a solution to this problem or evaluated the environmental effects of any potential new water supplies. This point, on its own, is a fatal flaw in the Water Supply Assessment (“WSA”) and the EIR, as is discussed in more detail below.

Test #3: The Developer lacks the right to deliver water from his well to his houses. Water rights are defined not only by limits on one’s right to capture the water, but also by limits on where one may use it. Water under riparian rights may only be used on parcels abutting a stream. Water under appropriative rights may only be used where the owner’s permit allows. Federal and state project water may only be used in the system’s places of use. And a landowner has no right to use well water on land that does not overlie the groundwater basin unless it is and always has been in the same legal parcel as the well.
For example, even if a developer had a firm contract for federal water, it could not be the source of supply for houses to be built outside the CVP place of use. Similarly, the developer of FPE has no right to use water from wells along Frazier Mountain Park Road to serve houses on top of his mountain since that land overlies hard rock and was patented to different owners during 1880-1930 than the parcel containing the well.
County staff labels this defect in the developer’s plan as a “civil issue” and ignores it. However, it poses a meaningful risk to the only (partial) water supply the developer has been able to put forward and must be addressed. “CEQA’s informational purposes are not satisfied by an EIR that simply ignores or assumes a solution to the problem of supplying water to a proposed land use project.” Vineyard Area Citizens for Responsible Growth, Inc., v. City of Rancho Cordova, 40 Cal.4th 412 (2007).

Deferral of a water supply plan for FPE is contrary to law.
As noted above, FPE’s lone well has a sustainable yield (assuming water levels allow it to work at all) of 180 gpm, while July demand is 433 gpm. Thus, FPE’s well satisfies at most 42% of its peak month water demand. The RDEIR does not say where 58% of FPE’s water supply is likely to come from.

At various times, developer’s documents have suggested, in the most cursory passing references, that additional water will come from a second onsite well drilled in the alluvium, from a well drilled into the granitic rock, and from a supply arrangement with the District. However, the WSA and EIR provide no data on the alluvium well (or even let us know what happened to the well the developer drilled), they provide no yield or sustainability data on a granitic well, and they have provided no details on a workable relationship with the District, like how the developer is going to provide the District with the water it would need to serve FPE. Absolutely no details on the additional water supplies are provided.

In this way, the FPE EIR is the same as that considered in Stanislaus Natural Heritage Project v. County of Stanislaus, 48 Cal.App.4th 182 (5th Dist., 1996). Stanislaus involved a large residential project to be developed over 25 years. As a Fifth District case (approved of by our Supreme Court) it is binding law in Kern County.

This is how the Supreme Court described the Stanislaus EIR when it approved of the appeals court decision in its Vineyard opinion:
“The EIR noted that “‘[a] firm water supply has not yet been established beyond the first five years of development, although the applicant is pursuing several sources.’ Although the EIR listed several possible sources of long-term water supply, it provided no analysis of the likelihood of their materializing and their environmental impacts if employed. Instead, the EIR deferred such analysis to future environmental review of water acquisitions or ‘detailed project-level review for future phases of development’, providing as a mitigation measure that if the applicant failed to demonstrate and analyze the impacts of future water supplies, further phases of the development would not be approved.” Vineyard, at 832, citations omitted.
Here, the Board isn’t proposing to phase in FPE, but condition the start of any construction on solving the water supply problem at some point in the future. But that is a distinction without a difference. The salient fact is that here, as in Stanislaus, a board of supervisors is certifying an EIR for a large development project when neither the board nor the developer has a clue where a majority of the project’s water supply will come from, the likelihood of any alternative sources of supply has not been evaluated, and the environmental effects of any possible alternative sources of supply have not been analyzed. In Stanislaus and Vineyard, the courts held that deferring identification and analysis of water supplies is not consistent with CEQA. “An EIR that neglects to explain the likely sources of water and analyze their impacts, but leaves long-term water supply considerations to later stages of the project, does not serve the purpose of sounding an ‘environmental “alarm bell”’ before the project has taken on overwhelming ‘bureaucratic and financial momentum’”. Vineyard, at 843.
Creating that “bureaucratic and financial momentum” appears to be exactly what the developer hopes for in pushing for certification of the FPE EIR now and solving his water supply problem later. But creating that momentum by deferring required CEQA analysis is exactly what is contrary to established law.

The FPE EIR and WSA are fatally flawed. The EIR should not be certified and the land use approvals should not be given until the developer has provided a plan for sufficient water supply for his entire project under all conditions required by law.
Very truly yours,

Dennis Mullins
Enclosure
cc:Chairman Ray Watson
Supervisor Don Maben
Supervisor Mike Maggard
Supervisor Jon McQuiston
Supervisor Michael Rubio
President Darren Hager, Lebec CWD
President Anita Anderson, El Tejon USD

LEBEC (Monday, May 3, 2010, 9:53 p.m.)—The Lebec County Water District (LCWD) Board voted this evening to tell their attorney to send a letter to the Kern County Board of Supervisors saying the county will be putting their residents and business customers at risk if the county certifies the Environmental Impact Report (EIR) for the proposed Frazier Park Estates in Lebec. The LCWD Board said they do not believe the County of Kern has sufficient basis to certify a 557-home development on the same aquifer from which LCWD’s wells draw their water.

Led by District 4 Supervisor Ray Watson, the Kern County Supervisors said April 20 they are poised to ignore the recommendation of their Planning Department and their Planning Commission—which both recommended a maximum of 188 homes in the Lebec area surrounding Frazier Mountain High School. The supervisors appeared to want to approve 557 homes and a 25-acre commercial district at their upcoming May 11 meeting. That could bring an estimated 1,500 additional people to the area.

 "I think we should send them the legal letter and also all show up to speak as community members," LCWD Director Julie McWhorter said.

There will be a public hearing May 11 before the supervisors vote (2 p.m. at the 1115 Truxtun Avenue Board of Supervisors chambers).

LCWD Board members said the fluoride levels in the Lebec County Water District are higher than allowed by the California State Board of Health. Directors said that pumping the volume of water that 557 new homes would require will drop the water table even lower, causing greater expense to their district and increased health hazards.

"Our concern is that the lower you go to get the water the more concentrated [the fluoride] is," said Director Steve Cozzeto. The water table has been dropping steadily, they said. Water Distribution Operator Kris Hollands said the water table is at about 168 feet now. There was comment that the Frazier Mountain High School well (adjacent to the proposed building site) has continued to drop over the past five years.

"I’m tired of these county supervisors pretending to be interested in us when they don’t know what they are talking about," longtime Lebec resident Dolores Griffin said. "Let their families come up and live here and suck on this foul stuff for a year."

The water district has been required to send out letters to their residents telling them that children’s teeth may be damaged from drinking the water (possibly turning black because of the high fluoride levels).

Former Director Dale Mann stood to recount that after the 1952 earthquake, both Castac Lake and area ponds went dry for several years. "We live on the San Andreas Fault in the center of earthquake country. All it takes is another shift in the ground and it can all be gone tomorrow. The water can just go away." Directors said that bringing about 1,500 additional people to the area would put currrent residents and businesses at greater risk.

Supervisor Ray Watson said he believes that the housing development is necessary to create economic growth in the area. LCWD Board Chair Darren Hager, owner of Stage Stop Hay & Mercantile said, "I’d like to have 500 new people walking into my store, but not if it means that we all end up without water."

Hager said a letter from the Kern County Water Agency, "had one sentence saying they believe there is enough water in the Cuddy Creek water basin and three paragraphs saying why they [the developers] probably can’t get at the water…."

Jan de Leeuw of Cuddy Valley came to the meeting wearing a TriCounty Watchdogs T-shirt. "Our lawyers say this is a winnable case and you may be able to get an attorney to take this case on contingency," he said. The LCWD currently uses Dennis Mullins of Bakersfield’s Klein DeNatale Goldner firm. Mullins was Vice President and General Counsel for Tejon Ranch from 1993-2006.

The TriCounty Watchdogs group has filed numerous objections against the Frazier Park Estates project, saying it would be "a bedroom community that is 40 miles or more from jobs," generating commuter congestion to the freeway, air pollution and environmental degradation.

This is part of the April 30, 2010 online edition of The Mountain Enterprise.

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