All Steamed Up Over Goleta Water Ordinance

(above: The Bishop Ranch as seen from Glen Annie Road.)

Almost all of the recent toil and trouble over water allocations in the Goleta Valley has focused on the question of “carryover.” Specifically, the debate has arisen from a single clausal phrase in the Goleta Water District’s (GWD) landmark Safe Water Supplies Ordinance, known as SAFE. The ordinance reads, “For each year in which [certain conditions] have been met, the district shall be authorized to release one percent of its total potable water supply to new or additional service connections.” Ever since 2001, the district has interpreted “for each year” to mean that if the one percent of the water supply set aside for new development was not used in a given year, it is to be be carried over for use in future years. As a result, the district has set aside 1,400 acre-feet worth of water in its new-development development account, enough for about 5,600 new homes. The reason they have designated so much water for new development is that the demand for brand new connections in recent years has been low, nowhere close to one percent annually of the total supply. In July, however, responding to public uproar over potentially massive new development projects gathering on the horizon, the GWD rescinded its entire water distribution plan, including the one-percent carryover provision.

On Tuesday, October 30, the GWD’s board of directors was scheduled to adopt a new distribution plan for implementing the SAFE ordinance. This, as freshly rewritten by GWD staff, still contained the one-percent carryover provision. The directors neither adopted it nor altered it. Instead, after listening to three hours of staff impassioned debate, insults, flattery, and threats of lawsuits from every side, the directors punted. They ordered general manager Kevin Walsh and attorney Chip Wullbrandt back to the drawing board, while giving them very little direction on what to do once they got there.

More than once during Tuesday night’s meeting, people wondered aloud about the whereabouts of the ordinance’s authors, who so far have kept out of the fray. On Friday, however, they weighed in. Katy Crawford and John De Loreto served on the GWD board during a severe, multiyear drought that led to the importation of state water as well as voter approval of the SAFE ordinance, meant to safeguard Goleta Valley’s underground water basin. Crawford and De Loreto constituted the subcommittee that wrote the SAFE ordinance, which the voters approved in 1991, including a provision that it cannot be modified except by another vote of the people. Contacted by phone at his law office in downtown Santa Barbara, De Loreto said that what he and Crawford meant by “for each year” was “use it or lose it.”

“I have no doubt whatsoever,” said De Loreto, “and I should be on the other side of the issue.” A strong proponent of importing state water, De Loreto was regarded as a pro-growth partisan at a time when slow-growth activists were trying to limit development to a level that could be supported by the area’s own natural resources. “Our intent was to start the clock over each year,” De Loreto emphasized, in order to ensure that supply would continue to meet demand over the long term. “The supply is in flux,” he said. “It’s unreliable. We don’t really know how much we’re going to have. If you make a mistake and overcommit one percent it’s not really that bad,” he said, “but if you aggregate it for seven years, then you could be in trouble.”

The annual one percent is a maximum, he noted. “If it looks like you’ve overcommitted, then the following year you don’t have to commit any new water.”

Asked how the authors envisioned that a sizable project could be built, such as the Bishop Ranch proposal, which envisions hundreds of homes on former agricultural land, and whose owners have projected that they could need upwards of 500 acre-feet a year, De Loreto responded: “The thing about Bishop Ranch is that they had an independent water supply, but chose to sell it . . . so if they have to wait in line and buy it in one-percent increments, I don’t think that is unduly unfair.”

(Garnering more customers, according to Walsh and water board member Lynette Mills, would reduce water costs to existing customers by spreading them out among more users. In De Loreto’s view, however, developers lucky enough to get can-and-will-serve-water letters that commit the district to serve them should pay to secure their piece of the action, even if it is years before their new meters are installed. “If you look at this over a 30- or 40-year time span, water is always gold.”)

“Goleta has the most reliable and broad supply of any district on the South Coast,” De Loreto said, “but the point is it’s meant to work for the next 40 or 50 years. There’s no call for a fire sale here,” he said. Referring to the GWD’s current boardmembers, whose average age is approximately 72, he added, “They’ll be digging these people out of the grave and putting them on flag poles if they give it all away,” he said.

Crawford was a fierce slow-growth water warrior during her years on the GWD board. She agreed with De Loreto’s recollection of the meaning of the phrase “for each year.” The “terrible bind” that the county had put the GWD in by approving all kinds of projects that the water district was then expected to supply, she said, combined with the multi-year drought and then resulted in rationing, brown lawns, an endangered aquifer, and state water, which she ultimately voted to put on the ballot along with the SAFE ordinance. The one-percents could not accumulate, she said, because “that would defeat the whole purpose of it, which was to use only what was real and existed. We didn’t want people borrowing nonexistent future water for development.”

Of course, De Loreto and Crawford having put aside their considerable differences to come to an agreement in 1991 is unlikely to put an end to the present debate. Nor is the fact that few developers in recent years have stepped forward to claim GWD water. So far this year, only 7.5 acre feet have been requested out of the 150 acre-feet that comprise one percent of the district’s total potable supply for 2007. At the end of Tuesday’s meeting, the one action the directors took was to allocate another 154 acre-feet for 2008.

The attack upon the new distribution plan was led by Jack Ruskey. Cherimoya farmer, retired litigator, and derring-do gadfly in the service of slow-growth water politics, Ruskey first entered the Goleta water scene in the period leading up to the 2006 elections, when he ran in tandem with former Hope Ranch water board member Burt Bertrando, who was elected, while Ruskey was not. Ever since, Ruskey and and Bertrando have continued to accuse the district of undermining SAFE in a way that will lead to reckless new development. Stepping up to the podium on Tuesday night, his speaker’s slip on the top of the pile of public speakers, Ruskey made a show of telling district officials to ensure that the public comments were recorded, implying they might become evidence in some future court proceeding.

Ruskey began Tuesday evening by accusing Wullbrandt, who was hired as the district’s legal counsel at the beginning of the year, of having not one but several conflicts of interest. Especially, according to Ruskey, the water distribution plan Wullbrandt and Walsh proposed to the board reinstituted the one percent carryover that had been rescinded in July. The carryover would make possible development plans for Bishop Ranch, a large, fallow tract of land where the Larwin Company whose owner wants to build tract enough homes to consume upwards of 500 acre feet of water each year. Up until he was permanently hired by the district in July, Wullbrandt represented the Larwin Company. Although board president Chuck Evans did not deign to address the implication of corruption, Wullbrandt later said that before taking the permanent position with GWD, he resigned as Larwin Company’s attorney and signed a promise that in dealings between the landowners and the district he would represent neither party. Following Ruskey, numerous other speakers also urged the board not to carryover that one percent to the following year if it was not allocated in the current year, many of them saying that to do so would cause the district to give away water that the district might not, in the future, be able to spare. The environmental degradation of the Sacramento Delta was mentioned as was the incalculable effect of global warming on the Sierra ice pack, from which all State Water Project water flows.

A few, however, argued the opposite point. Matching Ruskey for theatricality, attorney Jeff Nelson stepped up to the mic and, when he was not immediately recognized, quietly intoned, “Apparently I’m not that memorable.” When he identified himself as a “Wright suit attorney,” you could have heard a pin drop in the audience, which moments before had verged on raucousness. The 1989 case of Wright vs. the Goleta Water District was notorious for exempting dozens of large landowners from district rationing during the drought. Nelson spoke not only in favor of the carryover but he warned that “when the bottleneck breaks” on a variety of new development that is now in process throughout the district, the applicants numerous will have every right to expect water service. Other representatives of development interests asked the water district board when it crafts its plan to make the application process for new water service more predictable.

Another point over which the neighborhood activists, the developers, and the district staff clashed was the meaning of a new state law which says that the district may not withhold water from new housing developments that include affordable units. They also argued over the definition of potable. Those who favored minimal allocation to new development wanted it to mean “drinkable,” whereas the staff’s definition included Cachuma Lake allocations that went straight to agriculture before treatment.

Almost lost in the fiery rhetoric were the compromises staff built into its recommendations. In particular, the report recommends that no matter how many acre-feet of water have accumulated, from all of the previous years’ unused one-percents-for-new-development, a maximum of only 300 acre feet should be actually released in any given year. Additionally, the report suggested that despite staff’s understanding of the ordinance to mean that the one percent is to be reserved for previously unserved properties, it should nevertheless for simplicity’s sake be applied to both brand new service and expanded service, thereby subjecting virtually all development to a 300-acre-foot cap of water use annually.

Ultimately, however, these compromises offered cold comfort partly because they were offered not as solid rights but as perhaps temporary concessions-footnoted, in effect, by the staff’s interpretation of the ordinance. However, the bottom line, Walsh and Wullbandt said, is that the language in the SAFE ordinance is ambiguous and inconsistent. Ultimately, they emphasized, it is the board’s job to interpret it.

At the end of the night, the board voted simply to adopt the minimally controversial resolution that the projected total allocation of potable water for 2008 was 15,472 acre-feet (including the West Valley agricultural users who get the water before it is treated) and that one percent of that, which could be allocated for new development, was 154 acre-feet. Board president Evans instructed Walsh and Wullbrandt to come up with a distribution plan that would “answer all of these concerns” voiced during the meeting, with January as a loose deadline.