Point Reyes Light - August 23, 2001
Two groups demand that NMWD sell water rights
By Gregory Foley
Two environmental groups that oppose a North Marin Water District plan to convert senior water rights on Lagunitas/Papermill Creek from irrigation to drinking-water use have demanded the district give up more than half of its junior rights.
Most district directors have indicated they are willing to fight the giveaway.
The activists also want North Marin to make wide-ranging changes in rates and other policies in exchange for avoiding a lawsuit.
In a July 30 letter to North Marin manager Chris DeGabriele, the Tomales Bay Association and Sierra Club Marin Group, calling themselves the Save Tomales Bay Committee, made 16 demands. One was that the district sell off 0.961 cubic feet per second (cfs) of the junior water rights it currently uses to provide water to homes and businesses in Point Reyes Station, Olema, and Inverness Park.
Save Tomales Bay proposed the actions to offset what it believes will be a "surplus" of water rights owned by North Marin should the district be granted state approval to use in its Point Reyes Water System 0.67 cfs of senior water rights it purchased in 1998 from Point Reyes Station rancher Waldo Giacomini.
The activists are particularly concerned that if North Marin has enough drinking water to get through even the driest years, the district will also have enough water to allow for more homebuilding.
"It’s way too much of a surplus," Gordon Bennett of Muir Beach, conservation chairman of the Sierra Club Marin Group, told The Light. "It’s not just a cushion. They’re putting a cushion on top of a cushion, and then they’re adding a couch with a double-bed thrown on top."
However, North Marin’s DeGabriele last week emphasized that district staff will continue to seek approval from the state Water Resources Control Board to solidify its senior rights in West Marin while maintaining all of the district’s existing junior rights. North Marin owns 1.67 cfs of junior rights along Lagunitas Creek, which unlike the newly acquired 0.67 cfs of senior rights, are not enforceable in dry years.
"My goal is to secure our ability to use our senior rights should next year be a dry year," DeGabriele said.
DeGabriele on Tuesday discussed the Save Tomales Bay demands with district directors during a closed-door meeting. Director Dennis Rodoni of Olema on Wednesday said that he could not comment directly on the nature of the discussion but noted that directors "gave directions to [DeGabriele] to respond to the Save Tomales Bay letter and open discussions" with the activists.
Save Tomales Bay Committee’s objection to North Marin’s water rights is technically a challenge to a pending declaration by the district that changing the use of its senior rights from agriculture to municipal use will not adversely affect the environment.
Rancher’s water rights
Of 2.67 cfs once owned by rancher Giacomini, North Marin purchased 0.67 cfs and the Park Service acquired rights to the remaining 2.0 cfs through its purchase of the 550-acre Giacomini property last year.
The Park Service plans to use its share of the water to convert most of the Giacomini Ranch to a marsh. Although the state board last October agreed to divide Giacomini’s water rights between North Marin and the Park Service, the district must still gain approval to use the water for its Point Reyes water system.
Bennett and Tomales Bay Association president Ken Fox of Point Reyes Station in May claimed North Marin could end up with more water than it needs to satisfy its service area – either now or after the area has been fully developed in accordance with local zoning.
In June the activists threatened North Marin with a lawsuit if the district doesn’t ensure that adequate water levels are maintained in the creek to provide habitat for coho salmon.
Activists want more conservation
In their July 30 letter to NMWD, Bennett and Fox asserted that the combination of the district’s junior and senior rights – a total of 2.34 cfs – would be more than twice what the district needs for its customers, especially if the district imposes conservation measures and raises rates.
The letter claims, "NMWD’s present plan would provide enough water for a buildout of over four times what is currently planned in the local communities. To induce quadruple-buildout potential is unneeded, unjustifiable, and carries considerable risks and costs."
They also demand that NMWD return to the creek all water beyond what is needed for community buildout as now envisioned and that NMWD "adopt more conservative financial, environmental, and water-use policies."
The proposed mitigation measures outlined in the letter demand that NMWD:
• Sell to the Park Service at fair-market value 0.961 cfs of junior water rights and use the proceeds from the sale on numerous water storage and delivery improvements recently approved by NMWD directors. However, whether the Park Service wants to buy the water rights is not certain.
• Contract with the Park Service to release at its request up to 250 acre-feet of water into Lagunitas Creek. NMWD under a 1995 state order entered into a contract with Marin Municipal Water District to have 250 acre-feet of water released into the creek during dry years for municipal use in exchange for North Marin’s providing MMWD with imported Russian River water.
• Agree to provide water to the Point Reyes National Seashore headquarters in Olema under a legally binding contract. The measure demands that the connection fees for the complex be waived because of significant contributions made by the Park Service to the local water system. The Park Service headquarters is currently served through a non-binding, out-of-district arrangement.
• Give up its legal right to construct any type of temporary dam on Lagunitas Creek to keep saltwater from Tomales Bay from infiltrating the district’s creekside wells near the Coast Guard housing complex
• Place an immediate freeze on customers outside the service area except to include the Park Service’s Bear Valley complex.
• Obtain two-thirds customer approval before conducting studies to expand service in West Marin.
• Require that all existing and new out-of-district customers either petition to join the district and pay full connection fees and back taxes or instead remain outside the district and pay 50 percent of the in-district connection fees. The measure suggests NMWD use the revenue from the new out-of-district fees to augment the recently approved system and storage improvements. Of some fifteen homes and ranches outside the Point Reyes Service area that get water from the system, only one third were added by NMWD.
• Impose drought-conservation measures on out-of-district ranches and homes before in-district businesses and homes, regardless of whether the homes are merely used on weekends.
• Develop over the next year through an advisory committee a proposal to change the district’s billing policies to promote conservation and adopt a tiered rate that discourages consumption – if endorsed by the majority of customers.
Frank Dean, Assistant Supt. of the Point Reyes National Seashore, with a staff biologist in charge of the Giacomini wetlands-restoration project told The Light that the 2.0 cfs the Park Service already purchased from Giacomini will be adequate to restore the marsh. He said that his agency might be interested in purchasing additional water, but so far no agreement is being considered.
Director Rodoni before Tuesday’s board meeting said he supports the idea of giving up a portion of the district’s junior rights in exchange for the activists’ endorsement of North Marin’s senior rights. He characterized the 16 mitigation measures demanded by Save Tomales Bay as a "wish list" but added he believes the request for a tiered-rate study was a "no-brainer" and that a compromise should be possible.
Olema director’s views
"Some of the things are easy to give up," he said. "It would be okay to give up some junior rights although I disagree with them about the quantity. The senior rights are the key for us."
Rodoni said that growth projections at full buildout in the Point Reyes service area suggest that a total of 1.2 cfs would be adequate to serve all of the households and businesses – and that NMWD’s current total of 2.34 cfs is excessive. "Some board down the road may want to sell the water beyond district boundaries," he said.
Rodoni explained that by giving up some junior rights the district could avoid being sued by Save Tomales Bay, which has repeatedly claimed that the senior rights acquired by the district exist under a "legal cloud" because they were not continuously asserted by Giacomini and would otherwise be challenged by the activists before the state Water Resources Control Board.
Director wants to avoid lawsuit
"At least it’s all on the table now. If we could solve this then we wouldn’t have to do additional studies and go through costly litigation," Rodoni said.
However, Director George Amaroli prior to this week’s board discussion told The Light he is generally opposed to giving up water rights because the water may be needed by the district for some unforeseen use.
"These senior rights are very important to us, and the community deserves all that we can claim at this time," he said. "You will never know when you are going to need it."
Unmentioned in the activists’ letter, for example, is whether additional water might someday be needed for expanded fire protection, a community swimming pool, or other civic use.
Amaroli said, "Frankly, I like a comfortable system. We have no way of knowing what buildout will be 20 to 30 years from now. I’m not ready to throw away rights we have acquired and paid for."
Senior rights equal five gallons per second
Amaroli added that he views 0.67 cfs as a small amount of water that does not threaten the well-being of Lagunitas Creek – the equivalent of five gallons per second or 300 gallons per minute.
"The environmental groups want to control growth " he said, "but we want a reliable supply for the people of Point Reyes."
The director noted that he was opposed to giving up the district’s right to build a temporary dam on the creek until a proposed well project on the Gallagher Ranch that would protect the water supply is constructed.
The out-of-district customers who have begun getting water since the system was formed in the 1970s include one hookup for Point Reyes Station dairy rancher Bob Giacomini, another for neighboring rancher Steve Doughty for a vineyard and wine-tasting room, and one for the National Seashore headquarters.
"They pay a higher rate outside the service area. There’s no free lunch there," Amaroli said. "Our philosophy is we don’t like to see that type of expansion, especially if it doesn’t have the blessing of the county Planning Department."
Telling North Marin how to run district
Just before the Tuesday board meeting, Amaroli said, "It almost appears as if they want to tell us how to run our district. They want to tell us how to set rates, and they want to tell us who are customers should be."
NMWD director Jack Baker last week said that he also believes the district needs to hold on to all of its water rights and would be "surprised" if a majority of directors were inclined to give up any rights in West Marin. "It’s prudent for the district to hold on to what it has," he said.
He added, "If [the activists] are worried about growth, that’s something to be taken up with the Planning Division. I don’t agree that you should try to control growth with water."
Opponent claims benefits
Fox of the Tomales Bay Association said that he believes the district and its customers would not be adversely affected by his proposals and would in fact benefit from water conservation and the protection of endangered fish.
"Our proposal would still leave [North Marin] with more than enough water," he said. "They could sell the surplus water and use the profits to make improvements to the system. It’s a win-win situation."
Fox said that the district has overemphasized low water rates and generous supplies at the expense of the environment. "They’re looking at keeping their rates cheap. We’re looking towards humanity in the future."
Fox emphasized that if directors decline to give up any of their rights he will contest the change of use for the senior rights acquired from Giacomini. "We’ll challenge," he said, "but I don’t see that it’s in their best interest to let it go that far. The settlement could go either way. The district could lose, and their customers could lose, all because the district decided to defend itself on something marginal."
Muir Beach activist’s views
Bennett of the Sierra Club said that he and Fox are prepared to negotiate a compromise but noted it "would probably be a deal-breaker" if North Marin declined to give up any junior rights.
Bennett said that abundant rights and a lack of conservation measures could encourage home and business owners to waste water. "When you have a lot of something, people tend to use it," he added.
Gwyn-Mohr Tully, a water rights attorney for Downey, Brand, Seymour, and Rohwer in Sacramento, told The Light that water districts fiercely protect their rights and do not give them up unless required to do so by the state.
"Water districts fight like crazy to keep their rights, especially in Marin because of its value there," Tully said. "I don’t know of any district that has willingly given up its water rights."
NMWD directors Rodoni and Amaroli on Wednesday both told The Light that they could not divulge any details of their discussion of the Save Tomales Bay proposal. However, Director Rodoni noted that general sentiments on the board had leaned against his position of trading some junior rights for a clear path to solidifying the district’s senior rights.
"It became obvious to me that I’m in the minority," he said.