Op-Ed

Op-Ed

Ventura River adjudication: Remembering the past

2 14 WEB Paul jenkin photoBy Paul Jenkin, Friends of the Ventura River

The current controversy surrounding the adjudication of water rights to the Ventura River has focused on the most recent efforts by the city of Ventura to secure its water rights to the Ventura River. Many may not know that this effort has deep roots in the past.
The city of Ventura, was incorporated in 1886, but its claim to the waters of the Ventura River extend back to the establishment of Mission San Buenaventura in 1782. In addition to the Missions, the Spanish and Mexican governments also established a series of pueblos and ranchos between 1769 and 1835 in what later became the state of California.
California law recognizes water rights granted to pueblos under the Spanish and Mexican governments. Pueblo water rights are superior to all riparian and appropriative rights and cannot be forfeited by a failure to assert an interest or use of the water under that claim, including naturally occurring surface and subsurface water from the entire watershed of the stream flowing through the pueblo.
Despite the city of Ventura not being a successor to one of the eight original Spanish or Mexican pueblos, the city has periodically asserted its claim to the waters of the Ventura River based on a pueblo water-right.
In 1976, the city of Ventura attempted to assert a pueblo water right against the Casitas Municipal Water District’s right to divert water from the Ventura River at its Robles Diversion to Lake Casitas. The appropriative water rights granted to the Casitas Municipal Water District in the 1950s by the State Water Resources Control Board required Casitas to bypass the first 20 cubic feet per second of flow downstream of the Robles Diversion to protect the water rights of downstream water users, including the city of Ventura. The city claimed, however, that this provision did not fully protect its water rights under its pueblo water-rights claim.
To resolve this dispute, without formally asserting and establishing the city’s pueblo water right, the city and Casitas proposed to enter into a Conjunctive Use Agreement. This agreement would have allowed Casitas to divert all of the low flow of the Ventura River at its Robles Diversion (up to 500 cubic feet per second) to Lake Casitas. In exchange, Casitas would guarantee the city up to 6,000 acre of water annually from Lake Casitas, effectively allowing the city to use a portion of Lake Casitas as a storage reservoir.
In 1978, The Friends of the Ventura River filed a lawsuit against both the city of Ventura and the Casitas Municipal Water District. The lawsuit challenged the Environmental Impact Report that had concluded the Conjunctive Use Agreement would not adversely affect the wildlife of the river, including the native steelhead trout. In 1984, after losing in the lower courts, the city of Ventura and Casitas Municipal Water District appealed to the California Supreme Court, which rejected the City and District’s appeal, and effectively terminated the Conjunctive Use Agreement.
In 1997, the National Marine Fisheries Service listed steelhead trout in Southern California as an endangered species, including the remnant population of the Ventura River (and designated critical habitat). Rather than comply with new regulatory requirements, the City decided to forego its annual surface diversion at Foster Park and instead rely on its Foster Park wells. 
In 2003, the National Marine Fisheries Service sent a letter to the city of Ventura notifying the city that the continued operation of the city’s Foster Park wells posed a serious threat to the steelhead of the Ventura River, and in 2007 issued a draft jeopardy biological opinion regarding the city’s well field operation. The biological opinion identified a “reasonable and prudent” alternative that specified a minimum flow that would protect the steelhead’s migration, spawning and rearing habitats in the Foster Park area.
In response, the city chose to postpone repairs and enlargement of its well field, and recommenced the operation of its other existing wells in the Foster Park area. In 2014, Santa Barbara Channelkeeper (after years of monitoring water quality in the Ventura River under a program certified by the State Water Resources Control Board) filed a lawsuit against the city of Ventura, asking the State Water Resources Control Board to compel the city to reduce its pumping at the Foster Park wells, consistent with the “reasonable and prudent alternative” identified by the National Marine Fisheries Service. 
In 2018, the city filed an amended cross-complaint against all water right holders in the Ventura River watershed and issued a notice to commence adjudication of the Ventura River basin.  In 2019, the city signed an interim agreement with Santa Barbara Channelkeeper, based on the National Marine Fisheries Service’s 2007 jeopardy biological opinion, and entered into a court-sponsored settlement agreement process with major water purveyors, including the Casitas Municipal Water District, Meiner’s Oak Water District, Ventura River Water District, and several major agricultural landowners.
Additionally, in 2003, the National Marine Fisheries Services issued the Casitas Municipal Water District an “incidental take” permit to construct and operate a fish passage facility at the Robles Diversion. In 2007, Casitas filed a lawsuit against the United States, claiming the operational requirements of the new fish passage facilities unconstitutionally violated Casitas’ rights to the waters of the Ventura River. After numerous appeals, the case was dismissed in 2013, leaving the original “incidental take” permit in place. 
Recently, the city of Ventura’s assistant city manager, Akbar Alikhan, responding to questions about the Ventura River adjudication, claimed: “ . . . this is not a water grab. We are trying to find a solution that balances the needs of the local habitat while still providing the valuable water to our local residences.” Given the city’s long history of claiming unlimited, and unrestricted rights to the waters of the Ventura River, it is reasonable to ask what will that balance be? 
Residents of the Ventura River watershed who use the Ventura River, whether as a drinking-water supply or as an outdoor recreational experience, have a stake in the outcome of this latest chapter in the long history of the exploitation of the Ventura River.

 

— Paul Jenkin is a member of Friends of the Ventura River.