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Dry Creek Wastewater Pact Nullified by Court Order

By Barry Dugan, Healdsburg Tibune
March 22, 2007

Opponents said lawsuit uncovered “Trojan horse”

A pact between a group of Dry Creek Valley property owners and the Sonoma County Water Agency, which could have forced grape growers to use 1.5 billion gallons of wastewater per year in place of fresh water pumped from the valley and Dry Creek, has been nullified by a judge who agreed with opponents that such an agreement must undergo environmental review.

Opponents of the plan say their lawsuit uncovered a “Trojan horse” scenario that would have brought billions of gallons of treated wastewater into one of the world’s premiere growing regions, endangering world-class soils and threatening groundwater quality.

The agreement between the SCWA and the Dry Creek Agricultural Water Users would have obligated the group to use up to 6,000 acre feet of wastewater per year through the year 2022.

The successful legal challenge by the Landowners for Water Rights, comes at a time when the SCWA is releasing a draft EIR on the proposed North Sonoma County Agricultural Reuse Project, a massive system of pipelines and reservoirs that would bring billions of gallons of wastewater from the Santa Rosa Geysers pipeline to the Dry Creek and Alexander valleys.

At the same time, Santa Rosa is reviewing similar plans to store millions of gallons of wastewater in the north county for agricultural use and discharge into the Russian River.

The Water Agency’s stated goal in the agreement was to resolve competing water rights issues and “better manage the water resources in the Dry Creek Valley,” according to an agency release last year.

Healdsburg Attorney Edwin Wilson, who represents the Landowners for Water Rights in the lawsuit against the Water Agency, said water rights are not the issue at all. “They say they are getting water rights,but the agency is not getting any water rights at all,” he said.

“The Agency has slipped a Trojan Horse into the agreement,” Wilson argued in his court document, in which “Members are contractually obligated to take and use ‘substitute water’ (which includes wastewater) in lieu of fresh Dry Creek water.”

The ruling last week by Judge Elaine Rushing agreed with Wilson’s argument that the SCWA pact with the Dry Creek Agricultural Water Users, Inc. was subject to the California Environmental Quality Act because the agreement “may cause a direct or reasonably foreseeable indirect physical change in the environment,” and therefore qualifies it as a “project” under the law.

“If (wastewater) gets into the groundwater, it is, for all practical purposes, there forever,” said Wilson. “It is very difficult to try and reverse that. The Dry Creek Valley has Class I soil … the finest agricultural soil in the world. What we’re playing with is our two most precious commodities, soil and water … to take our most precious commodities and put them at risk is unacceptable.”

Jill Golis, an attorney with the County Counsel’s office, said “I’m disappointed with the ruling.”

Golis, who said it is too early to say if county officials will appeal the ruling, disagreed with the judge’s opinion. “There was nothing in the Dry Creek agreement that required the water agency to move forward with any recycled water project,” she said, and therefore it did not require a CEQA review.

Fred Corson, who represents the Landowners for Water Rights, believes the Water Agency has a larger agenda than resolving water rights. “To me, the agenda is very clear,” said Corson. “The more wastewater they can force on ag users and gain control of water they are pumping, the more water they have available to sell to their urban customers.”

The SCWA supplies water to more than 600,000 customers in Sonoma and Marin counties. It controls the water released from Lake Sonoma that flows down Dry Creek and to the Russian River, eventually being diverted above the Wohler Bridge. Diversions by landowners in Dry Creek Valley “is of concern because the Agency is required to maintain certain minimum streamflows” in Dry Creek.

Pam Jeane, deputy, chief engineer with the SCWA, said the agency is awaiting direction from the Board of Supervisors as to whether a new agreement will be considered.

Wilson believes the Dry Creek water agreement “is the last piece in the waste water puzzle. There is plenty of waste water being produced in the area, but no place to dump it … this would have allowed anyone to bring waste water in … it’s pretty clear that they want to make Dry Creek Valley the poster child for its waste water plans.”

Jeane said the agency doesn’t share that view. “We see the agreement as being one that says we are going to cooperate with the landowners in the Dry Creek Valley and work togther to manage the water resources in the Dry Creek Valley.”

She said the judge’s decision to nullify the agreement is not good for those landowners who were involved. “That agreement provided certainty to those landonwers … they no longer have that certainly that if they participated that we would not contest their water use.”

In addition to requiring landowners to take wastewater in lieu of fresh water, the proposed agreement forbid them from opposing the Water Agency’s efforts to develop groundwater or wastewater in the Dry Creek Valley.

Corson said the wastewater being proposed for irrigation meets only minimal quality regulations, and contains numerous potentially dangerous contaminants. “In my opinion, a minimum expectation is that contamination of both surface waters and groundwater will occur,” he wrote in a letter to the Board of Supervisors last year.

Jeane said that the agency considers the use of recycled wastewater to be safe and its use for irrigation and frost protection falls within the guidelines established by the state Department of Health Services.

Corson also pointed out that the SCWA and Dry Creek water agreement would have constituted about a third of the North Sonoma County Agricultural Reuse Project, which is undergoing an environmental impact report. “If that project requires CEQA review then so must this contract,” he wrote.

Wilson said Corson’s vigilance in detecting the impacts of the wastewater plan were critical for the future of the North County. “Now there’s not going to be a Trojan Horse anymore,” he said. “Everyone is going to be watching.

With water supply becoming a critical issue, Wilson said “from now on and into the foreseeable future. we’re going to have the water wars. Everybody is running out of water.”