Point Reyes Light - June 20, 2002Three pro-fish, anti-homebuilding groups sue
By Gregory Foley
Two environmental groups have filed a lawsuit against North Marin Water District, objecting to the district’s plans to convert its senior water rights on Lagunitas/Papermill Creek from agricultural use to domestic use.
Under an agreement approved by the state Water Resources Control Board in 1998, the late rancher Waldo Giacomini sold North Marin 0.67 cubic feet per second (cfs) of his senior rights to water flowing down the creek.
The water district was already using creek water to supply households and businesses in Point Reyes Station, Olema, Inverness Park, and Paradise Ranch Estates, but North Marin officials agreed they needed to solidify their senior rights to make sure that the district has enough water to serve customers in dry years.
However, Ken Fox of the Tomales Bay Association and Gordon Bennett of the Sierra Club Marin Group began protesting that a change of use could, in dry years, threaten coho and steelhead by diverting too much water from the creek.
To this, district staff and directors responded that in 1995 the state Water Resources Control Board ordered that Marin Municipal Water District – which controls most of the flow in the Lagunitas/Papermill Creek – must provide water in dry years to ensure that endangered fish can survive.
But fish are not the plaintiffs’ only concern. Bennett of the Sierra Club and Fox of the Tomales Bay Association have warned that surplus water rights could encourage North Marin to seek new customers, leading to new development in the Point Reyes Station area.
North Marin not a planning agency
To this North Marin has replied that the water district is not in the land-use planning business and that the community and county government will decide what new houses are allowed.
Although North Marin also owns 1.67 cfs of junior rights on Lagunitas/Papermill Creek, those rights are not enforceable in dry years, possibly leaving the district with an inadequate municipal supply in those times. So North Marin bought 0.67 cfs of Giacomini’s senior rights, and the Park Service bought 2.0 cfs.
It was likely clear to the state board when it approved a domestic-water system’s purchase of a rancher’s rights to irrigation water that the water system planned to change how the water would be used. As a result, North Marin officials expected no problems with what would normally be the final formality – getting the change in use officially approved by the same state board that approved the sale.
No change in diversion
In a March Notice of Exemption, North Marin stated the conversion will not affect the environment because it will not "involve any change in amount of diversion nor does it include any construction activity, building of structures, grading excavation or changes to land usage, or expansion of use."
However, in the suit filed April 26 in Marin Superior Court, the Tomales Bay Association and the Albany-based North Bay Chapter of Trout Unlimited demanded that the state order North Marin to pay for a formal environmental study before the Water Resources Control Board allowed it to use its senior rights to serve West Marin households.
Trout Unlimited attorney Chuck Bonham said the suit was filed primarily to protect endangered fish. "We’ve gone through the customary channels with the district in order avoid a lawsuit – without success," Bonham said.
District plans to keep water rights
Fox and Bennett a year ago threatened to sue North Marin if the district did not make several concessions to protect the creek, including giving up junior water rights. Negotiations to reach a compromise were held but broke down, primarily because North Marin insisted it must hold onto its water rights in case of unforeseen future problems.
"We’re not against the district trying to find a secure water source," Fox said. "It’s just that they did not answer several legitimate questions about the impact when they gave their negative declaration of environmental impact."
Sierra Club Marin Group was expecting to hear from its national office this week whether to join the lawsuit, Bennett said.
Opponents fear water could lead to homebuilding
The Sierra Club’s Bennett – like Tomales Bay’s Fox – has also insisted that surplus water rights could encourage North Marin to seek new customers, leading to new development in the Point Reyes Station area.
North Marin officials "now appear determined to stick to their story that there is absolutely no way modifying their water right may have an impact on Endangered Species Act-listed fish in Lagunitas Creek, and that’s simply wrong," said Trout Unlimited lawyer Bonham. "Legal action is the only card left to play."
The lawsuit asks for a "peremptory writ of mandate," directing the North Marin to "vacate and withdraw" its Notice of Exemption from formal environmental review.
Dennis Rodoni of Olema, a director of North Marin and a former director and treasurer of the Tomales Bay Association, said the lawsuit "didn’t surprise me, particularly knowing the history of water rights along Lagunitas Creek."
Director Rodoni predicted the court will probably order attorneys from both sides to try to negotiate a compromise before scheduling any trial.