Commission rejects NMWD well appeal

05/26/2021

The appeal filed by Gordon Bennett of a proposed well outside of Point Reyes Station was rejected on Monday by planning commissioners, who said they did not have the expertise to evaluate it. 

Mr. Bennett says he will now appeal the project to the Board of Supervisors, and will keep appealing until someone addresses his concerns about maintaining a minimum flow for endangered coho salmon in Lagunitas Creek. 

The well, a project of the North Marin Water District, is planned on the Gallagher ranch, about a mile and a half upstream from Tomales Bay. It’s the water district’s second well on the property and is intended to mitigate salinity intrusion in wells on the former Coast Guard property. When the Coast Guard well water becomes salty, two Gallagher wells could meet demand.

Yet the project is complicated by a 1995 state order, which requires that the North Marin Water District and Marin Water—the new name given to the Marin Municipal Water District—maintain a minimum flow in Lagunitas Creek, depending on the season and rainfall. 

Mr. Bennett alleges that the minimum flows have not been maintained, and a recent hydrogeologic study backs up his claim. North Marin should request more releases from Marin Water instead of unlawfully pumping water that is meant for the salmon, he said.

Planning commissioners and county staff were in over their head. No one at the meeting had the expertise to navigate the complex rules around water rights, streamflow requirements and salmon protections. They feared a condition around water releases would not comply with state law, so they punted.

“Water law is so nuanced and so complicated, and we are not the only player here as the responsible agency. There will be other state players that take over this question,” county environmental planner Rachel Reid said. “I don’t really think this is something we need to tackle.”

Commissioner Don Dickenson agreed. “We’re venturing into an area where we just don’t have the expertise,” he said.

Only commissioner Margot Biehle supported the appeal, saying she wanted other agencies to take a closer look before she voted to advance the project. Mr. Bennett, an Inverness Park resident and a North Marin Water District customer, has until June 1 to appeal the planning commission’s decision.

“On to the Board of Supervisors,” he told the Light after the meeting. “I’m going to find somebody who understands this. It’s complicated and I don’t blame the planning commission. But someone, somewhere is going to understand this. Maybe it’s the coastal commission, or maybe it’s the state water board.”

These administrative appeals are right up Mr. Bennett’s alley. Whether it’s e-bikes in the Point Reyes National Seashore, shark tours in the Gulf of the Farallones or salmon releases in Bodega Bay, he often outlines his environmental concerns in letters and appeals. 

Mr. Bennett’s well appeal alleges that the water district’s environmental review is incomplete, and that the project itself would not be unnecessary if more effective water conservation measures were implemented. But neither of those issues are within the planning commission’s purview, county planners said.

Mr. Bennett admits that his gripe is bigger than the second well; its permit is his leverage, he said. More importantly, he is trying to force North Marin to follow the 1995 order from the State Water Resources Control Board that says if creek flows are less than six cubic feet per second during dry-year summers, then the district is prohibited from diverting water from Lagunitas Creek. Permits and environmental review documents also back up this minimum summer flow.

North Marin contracted a groundwater and streamflow response analysis on the Gallagher ranch last summer and fall that showed creek flows are usually below the guideline of six cubic feet per second, and they are often closer to four. 

Water depth in the creek fell by about a quarter-inch when 150 gallons were pumped per minute from a test well; the analysis found that level was not enough to have a significant impact on fish. 

But that misses the point, Mr. Bennett told the commission. “It’s not a question of taking a little salmon water,” he said. “Defending the taking of unlawful water is like going into a defense of a bank robbery and saying, ‘Well, the bank robbers only took a little bit, so no problem.’ It’s not how much is taken, it’s the taking itself that’s the problem.”

Drew McIntyre, the district’s general manager, said the streamflow analysis does not provide enough information to know if the district is complying with the 1995 state order. The district has contracted an environmental consultant to perform another study on what Lagunitas Creek looks like south of the Gallagher ranch, before and after a season of test pumping. 

“It could very well show that we need to release more water during these dry years,” Mr. McIntyre said. “But it doesn’t make sense to always automatically release the water if there’s no particular benefit.”

North Marin requests releases from Marin Water based on observations of tributaries and a gauge at Samuel P. Taylor State Park, but data from the lower portion of the creek is lacking, Mr. McIntyre said.

The California Department Fish and Wildlife will review the well application’s compliance as part of a streambed alteration agreement, and the State Water Resources Control Board is also reviewing the plans. 

Mr. Bennett’s appeal means that the well will likely not be constructed this year, leaving 1,800 customers in Point Reyes Station, Olema and Inverness Park looking at another year with salty drinking water. Last year was by far the worst ever; the sodium levels presented a health risk for people on a sodium-restricted diet, and some people couldn’t gulp the water down. 

Ken Levin, the president of the Point Reyes Station Village Association, advocated for the project to move forward. 

“We thought that Gallagher well two would be online this year, and it would’ve been had it not been for Mr. Bennett’s appeal,” he said. “Right now, I’m a little bit confused about why he is doing this. Every time we listen to his objections and answer them, then the next time there are more objections and they’re different. And it’s getting a little frustrating.”

The district will have water trucked to downtown Point Reyes Station this year so that customers can fill jugs with better drinking water. Notices of high sodium and chlorine content will be published in the Light.