Water Archives · Gary Sawyers interview

Title

eng Gary Sawyers interview

Description

eng Fresno water lawyer talking about the litigation leading to the San Joaquin River Settlement and salmon restoration plan.

Creator

eng Sawyers, Gary

eng Holyoke, Thomas

Relation

eng Water Archive Oral Histories

Coverage

eng California State University, Fresno

Date

eng 6/29/2015

Format

eng Microsoft Word 2013 document, 21 pages

Identifier

eng SCMS_waoh_00041

extracted text

>> Thomas Holyoke: We are talking to Gary Sawyers, a local water lawyer,
today. Just start off telling us a little bit about your history, who you
are, where you're from, and how you got to be where you are.
>> Gary Sawyers: Well, I was raised in Fresno. My family was not a farm or
water related family. My father ran a TV Station here in town, my mother was
a homemaker. I went away to Southern California, San Diego for college, went
to law school in Los Angeles, went back to San Diego to begin my practice.
And after about five and half years, in the mid 1980's, decided to move my
then new wife and new family back to Fresno so that I could be near family
and so that I could work in the area of water law. I wasn't doing water law
in Southern California, but I had an opportunity to work with a water lawyer
here in Fresno and it sounded like an interesting personal and professional
opportunity and so we decided to take it and 30 years later I'm still here.
>> Thomas Holyoke: Who did you work with in Fresno?
>> Gary Sawyers: It was a gentleman named Ben Ewell, who is still in the
community. He's still, I don't think he practices much water law, but he's
still very involved in water related matters. He does some development and
he works in water transactions. He helps put water deals together.
>> Thomas Holyoke: So you started your more water related practice in the
1980's?
>> Gary Sawyers: In the mid 1980's, yes.
>> Thomas Holyoke: Okay. What sort of work were you doing and what sort of
cases or clients were you working with, dealing with?
>> Gary Sawyers: Well, my first large water clients were a combination of
farmers, mostly on the west side of the San Joaquin valley, mostly in the
Westlands Water District, as well as some water agencies, the Dudley Ridge
Water District was one, the Friant Water Users Authority was another, and
the King's River Water Association was yet another. Back in those days the
reclamation laws had just changed and there were a lot of farmers that had
to restructure themselves to come into compliance with the new law by, as I
recall, was April 19th of 1987 was the deadline. So there was a lot of work
done to restructure how farmers were actually configured in terms of their
ownership's and leasing and farming arrangements so that they complied with
the new law. And so I spent a lot of time doing that early on. But also
worked with the Friant Water Users Authority, which was a brand new
organization at the time, representing the districts in the Friant division
of the Central Valley Project. And then, as I said, with Dudley Ridge Water
District, which was and is a state water project contractor. And the King's
River Water Association, which manages the water on the King's River for its
28 members.
>> Thomas Holyoke: Well let's just stay on the west side a little bit, in
the 1980's. If you could talk a bit more, if you remember, about this
restructuring and the reclamation law. What was being restructured? You've
talked about the farm arrangements, the leasing arrangements?
>> Gary Sawyers: Well, in 1982 Congress passed something called the
Reclamation Reform Act. And among other things, the Reclamation Reform Act
changed what are called acreage limitations. The manner in which federal
reclamation project water is allocated is based on the number of acres that

one owns. Prior to 1982 the acreage limit was, generally speaking, 160 acres
per person. And in 1982 the law changed and it became 960 acres per what's
called a landholder. And a landholder is an individual and his or spouse and
his or her dependent children. It also changed how much people had to pay
for the water depending on how they were structured. So a great many farmers
who had structured themselves to comply with the old law, the 160 acre
rules, had to restructure themselves pretty significantly in order to comply
with the new 960 acre rules and to try to address the potential for higher
water prices if they weren't properly structured. So there were a lot of new
entities that got formed. There were a lot of new people who came into
farming. There were a lot of children, for example, that were brought into
farming operations. A whole lot of things happened to restructure how farms
subject to federal reclamation law were operated and owned.
>> Thomas Holyoke: Okay. Any other big events you remember from the 1980s
out on the west side and any particular problems they were dealing with? Did
you get involved at all in the drainage issues out there?
>> Gary Sawyers: I was involved somewhat in the drainage issues. They had
materialized in Kesterson right about the time that I came back to the San
Joaquin Valley. The Kesterson Drain was closed less than a year after I came
back to the valley. And, or I should say the Drain was closed as a result of
Kesterson. And I was involved in some of that, but I was not involved in the
drainage litigation that was going on by the time I got back, so I was more
of a witness than a participant.
>> Thomas Holyoke: And Dudley Ridge Irrigation District, where is that
actually located?
>> Gary Sawyers: It's the Dudley Ridge Water District.
>> Thomas Holyoke: Water District.
>> Gary Sawyers: And it is located in King's County just south of Kettleman
City. It runs more or less along Interstate 5. It's a relatively small
district, but it has some very large farmers in it and some very large
ranches in it. It has some unique issues because there's almost no usable
ground water within the Dudley Ridge Water District, and so it is entirely
dependent on the state water project surface water that it imports. And even
in 100 percent allocation year Dudley Ridge doesn't have enough water to
irrigate all of its acres. And so going out and finding supplemental water
supplies or finding other kinds of arrangements to augment the surface
supply has always been a challenge out there. And, of course, as time has
gone on and the delta constraints have become more and more impactful, the
amount of water that is coming to Dudley Ridge has been reduced. And so the
need to supplement that water with other suppliers has become greater and
greater.
>> Thomas Holyoke: I just kind of wondered, and maybe you have some
perspective on this, some of the differences in being a state water project
contractor versus being a CVP contractor. Are there any major differences or
major problems that one has that the other doesn't have? Or is it
advantageous to just contract with one and not the other?
>> Gary Sawyers: Well, when I started in the mid-80s, the principle
difference was, of course, acreage limitations. The State Water Project
doesn't have any acreage limitations and so there are no constraints on how

land is owned or farmed that impact your water supplies. And so back in
those days the issue was primarily acreage limitation. As time has gone on
acreage limitation, while it still exists on the west side, has become less
and less important, at least in some instances, because the water supplies
have been diminished by environmental and other constraints by drought. And
do there has been, I think, less and less concern about that. The state
water project is usually viewed as being slightly more reliable than the
federal project in terms of exports. But the water's a little more
expensive. So there are sort of pros and cons. The state water project
water, here of late, has become, in some senses, more valuable, excuse me,
than the CVP water because the state water project place of use extends over
the Tehachapi Mountains into Southern California and if someone wants to
dispose of their water supply, assuming that they can, that means that they
may have the opportunity to sell that water into southern California where
it's obviously much more valuable in the hands of developers or cities. The
Central Valley Project place of use doesn't extend over the Tehachapis. It
stops basically at Bakersfield, and so it's almost impossible to sell CVP
water south of the Tehachapis. So there, as time has gone on there have been
different dynamics that have affected the viability of each of the projects
and the water supplies that you get from them.
>> Thomas Holyoke: So, a district like Dudley Ridge, you had talked about
them needing to buy supplemental water, where would they acquire that water
from?
>> Gary Sawyers: All over the place. The management of Dudley Ridge has been
very creative over the years in making arrangements. Dudley Ridge
participates in the Kern water bank. It has a number of other arrangements
with other districts pursuant to which they either bank water or do water
exchanges. Dudley Ridge has allied itself with a few other districts in
western Kern County that also have water supply issues and they have
collectively gone into the marketplace to try to create more buying power to
acquire water supplies from all sorts of different locations from north of
the Delta to the Merced River and lots of other places. They look, they're
constantly looking for water supplies to try to augment the water supplies
that they have because, as I said before, they're just not adequate for the
intensity of agriculture that exists within Dudley Ridge.
>> Thomas Holyoke: Is Dudley Ridge's situation typical of a lot of small
water irrigation districts?
>> Gary Sawyers: It's becoming regrettably typical of, not just small, but
any irrigation district that particularly one that relies on exports out of
the delta because of the constraints on Delta water supplies that we've seen
over the last 25 or so years. Those water supplies have become less and less
reliable. I don't know the numbers exactly, but in the late 1980s both the
State Water Project and the CVP in the export areas were probably well in
excess of 90 percent reliable meaning that in an average year, if there is
such a thing, they would deliver well over 90 percent of the contract
totals. And that number is now probably below 50 percent for both projects.
Certainly for the CVP it is. And it's probably right at about 50 percent for
the State Water Project. And so as those constraints have become more and
more severe the need to buy the supplemental supplies has become greater.
>> Thomas Holyoke: Well speaking of constraints, let's talk a little bit
about the Central Valley Project Improvement Act of ‘92. You had said you
had some involvement with this.

>> Gary Sawyers: I did.
>> Thomas Holyoke: What's the background of this piece of legislation?
>> Gary Sawyers: Well, the background is sort of interesting. In the, as I
mentioned, in 1987 farmers had to restructure in order to comply with the
Reclamation Reform Act. And there was a sense among critics of the
reclamation program in Washington, and elsewhere, that the restructuring had
not been substantial enough and that the law that had been passed in 1982
and was implemented in 1987 did not accomplish the goals that the critics of
the Reclamation Program had hoped to achieve. And so there were a number of
hearings back in Washington in the late 1980s to take a look at how the
Reclamation Reform Act had been implemented and whether further amendments
to the Reclamation law were really going to be necessary in order to
accomplish what the folks who were not terribly supportive of the
Reclamation Program wanted to achieve. And those folks included Congressman
George Miller and Senator Bill Bradley. And there were, as I said, a number
of hearings, and at one of those hearings I happened to be in attendance,
Senator Bradley said, "You know, maybe we ought to really focus on what the
real problem is. And the real problem isn't 16 of the western states, it's
really only one of the western states, and that's California. And the real
problem really is in the Central Valley Project, so maybe we should just
look at doing something in the Central Valley Project." And out of that
statement came the first draft of a Central Valley Project Improvement Act
from Senator Bradley and ultimately from Congressman Miller that was aimed
at dealing with issues that they thought needed to be addressed within the
CVP. The balance of the Reclamation West thought that was a pretty good idea
because it took the heat off of them. And so the balance of the Reclamation
West was more or less in favor of being left alone and allowing Senator
Bradley and Congressman Miller, and others, reform of, in their words, the
Central Valley Project. And so from roughly 1989 until roughly 1992 there
was a lengthy legislative effort in Congress to sort out how the Central
Valley Project should be improved, or reformed, or changed. Ultimately
Congressman Miller and Senator Bradley got a bill that they liked and they
included it in an omnibus water bill that had probably 40 or so titles, most
of those were things that the Reclamation West wanted to see passed. Then
President [H.W.] Bush had appeared in Fresno and had threatened to veto, not
threatened, promised to veto the CVPIA, but it was folded into this very
large omnibus bill that the balance of West liked and was submitted to
President Bush for signature immediately before the election in 1992. And
regardless of, or notwithstanding the fact that President Bush had promised
a veto on any legislation that included CVPIA, ultimately he made the
decision to sign the bill. And it was signed, it was actually October 30th
1992, which was about a week or so before ‘92 election.
>> Thomas Holyoke: Was he hoping to pick up Bay Area votes in the ‘92
election or something?
>> Gary Sawyers: Well, I don't know if he was hoping to pick up Bay Area
votes or he was hoping to pick up votes in the other 16 states that had
pieces of legislation included in this package that he thought would curry
favor in those states.
>> Thomas Holyoke: As I recall, Senator Bill Bradley was from West Virginia,
a long way from California.

>> Gary Sawyers: Actually, he was from New Jersey.
>> Thomas Holyoke: New Jersey, okay. One of those East Coast states.
>> Gary Sawyers: We play basketball in West Virginia.
>> Thomas Holyoke: What got Senator Bradley interested in this? I mean, who
was sort of driving this thing along?
>> Gary Sawyers: Um, I truly don't know. I actually had an opportunity
because I worked really intensely on the bill on behalf of a client, Water
User's Authority, at the time. I was in Washington a great deal during the
formulation of the legislation. I had a chance to meet on multiple occasions
with Senator Bradley. He never displayed, at least for me, why it was such a
hot button issue for him, but it had become a hot button issue for him. It
was very important to him. He felt very strongly about it from a policy
perspective. I know he was very much aligned with Congressman Miller who
was, of course, from California and a longtime opponent of the Reclamation
Program and one of the authors, by the way of the Reclamation Reform Act.
And he and Congressman Miller had become friends and allies in this. But to
this day I couldn't tell you why it was such a big issue for Senator Bradley
other than I think that he genuinely felt that it was the right thing to do.
>> Thomas Holyoke: The accusation has been made, and is still made, that a
lot of this CVPIA and how it continues to be implemented is being driven by
environmental interests. Was that your impression at the time?
>> Gary Sawyers: Oh, there's no question. There's no question about it. The
environmental community was extremely involved. I don't recall a single
meeting back in Washington that I attended, and I attended a great many of
them, on CVPIA where there weren't substantial representatives from the
environmental community involved. CVPIA was almost exclusively, with a
couple of key exceptions, almost exclusively an environmental bill. It
reallocated a substantial amount of the yield of the CVP to environmental
purposes. It imposed additional costs on CVP water which were covered to
something called the Restoration Fund, to be used for environmental
restoration purposes. It authorized a significant number of projects, almost
all of which were environmental in nature, so it was clearly an
environmental piece of legislation.
>> Thomas Holyoke: Did you, do you have the feeling now that this was a sea
change, I suppose, in California water politics and policy?
>> Gary Sawyers: It was important. It followed as one of a series of
important steps, though. The first important, significant change in Delta
operations in CVPIA affects mostly the Delta, or at least initially it did.
But the first thing that happened was the listing of the winter run salmon,
which occurred in the late 1980s, which the winter run salmon utilized the
Deltas. They migrate in and out of upstream spawning habitats and that
resulted in the first significant change in the manner in which the Delta as
operated, in particular the pumps for the State Projects and the CVP. And
that was in the late ‘90s, excuse me the late ‘80s. That was followed
closely by the enactment of the CVPIA, which rededicated in excess of a
million acre feet of CVP yield to environmental purposes and that was
followed by the listing of the Delta smelt under the Endangered Species Act,
as well as a series of other things that occurred. And each of those layered
another set of regulatory constraints or reallocations on the Delta System.

And so while the CVPIA was very significant, it wasn't the only significant
thing that happened that got us to where we are today.
>> Thomas Holyoke: In CVPIA, I guess I understand that one of the big pieces
in there was the withholding of 800,00 acre feet of Delta water that
otherwise would have gone into the Central Valley Project.
>> Gary Sawyers: That's correct.
>> Thomas Holyoke: And, but it's the way, I guess, that it's been
implemented that I've heard that the actual withholding has been somewhat
greater than an 800,000 acre feed. Is that correct?
>> Gary Sawyers: Well there are, there have been several lawsuits over CVPIA
and in particular that water, that 800,000 acre feed, and by the way it's
more than an 800,000 acre feet in the sense that there was also water that
was reallocated to go to refuges and for other environmental activities. But
the 800,000 acre feet was just sort of an off the top reallocation and it
was an off the top reallocation from Delta export supplies. In other words,
there was no, none of that 800,000 acre feet came, for example, from Friant,
and so the hit, if you will, that was suffered by the water users was
concentrated on the CVP water users and the Delta. So it was, people like to
say well, it was less than 10 percent of the total CVP yield. Well, that's
true, but it was concentrated on something well less than the entire CVP,
which made the hit that much greater. The manner in which the water has been
calculated, as I said, has been the subject of a lot of litigation. There
are, the environmental community believes, and I don't mean to speak for
them or to over simplify their position, but the environmental community
believes, in general, that the only water that can be counted toward the
800,000 acre feet is water that physically flows out underneath the Golden
Gate Bridge and is therefore loss to any kind of consumptive use. Others
believe that once an acre foot of water has done some environmental good, it
counts toward the 800,000 acre feet and therefore if it can be recaptured
and used, then it can be, and that's still in compliance with the law. And
that has resulted in a very complicated accounting system for how the
800,000 acre feet is counted.
>> Thomas Holyoke: And this 800,000 acre feet withheld regardless of what
kind of water year you're having? Even if there's plenty of water in the
system?
>> Gary Sawyers: There is a shortage provision for very, very dry years, but
I think, in my recollection, it just goes to 600,000 acre feet. So it's not
a scaled block of water the way, say a contract supply of water would be.
>> Thomas Holyoke: Also, just before we leave the subject, were there any
parts of CVPIA that could have been a lot worse but at least mitigated by
the efforts of yourself and others?
>> Gary Sawyers: Well, I won't take any credit or blame for CVPIA. I think
the Friant, the Friant water users actually ended up doing fairly well under
CVPIA. They were exempt from having to contribute to the 800,000 acre feet.
They did have an additional surcharge that was put on their water. It was
originally 4 dollars and it ramped up, ultimately to 7 dollars, which at the
time seemed like a lot. In hindsight it doesn't seem like very much. The
Friant system was, however, to be studied to, for on what was called the
comprehensive plan. And the idea was to see what it would take in order to

establish, or reestablish the salmon run below Friant Dam. So there was to
have been a study. That study ended up not being funded by Congress so the
study never really happened. There were pieces of it that sort of did. That
was more or less replaced by litigation that was, at the time, ongoing.
CVPIA was ‘92 and the San Joaquin River litigation began in 1988. But just
within the four corners of CVPIA the Friant folks, I think, could have done
much worse than they did. The 800,000 acre foot and the other water
reallocations under CVPIA were a significant change in the way in which the
Delta operated and the way in which folks on the west side of the San
Joaquin Valley got CVP water. And I, well could it have been worse? Sure. I
suppose the 800,000 acre feet could have been a million and a half acre
feet, but it dealt a pretty severe blow both economically and hydrologically to the folks on the west side of the San Joaquin Valley.
>> Thomas Holyoke: Was the Valley congressional delegation united in trying
to push back on the CVPIA?
>> Gary Sawyers: At the time, Cal Dooley was then a fairly new congressman,
and Congressman Dooley did an outstanding job in trying to represent the
Valley's interests, but Congressman Miller was very powerful, a committee
chair and very highly regarded in Congress. The answer to your question is
no, there was not anything like unanimity amongst the valley delegation
because there were some folks who were aligned with Congressman Miller and
there was some folks who were aligned with Congressman Dooley. We also had,
at the time, Senator John Seymour, who replaced Senator Wilson and Senator
Seymour was very new to the Senate and had just been appointed. And while he
fought as hard as he could he did not have any of the long term alliances or
the long term friendships that it takes to deal with important pieces of
legislation like this.
>> Thomas Holyoke: Okay anything else on the CVPIA? Okay. In that case let's
jump over to Friant. What is the Friant Water Authority? Let's start there.
>> Gary Sawyers: Okay. Well, my client was called the Friant Water Users
Authority, and it was a joint powers authority. A joint powers authority is,
in effect, a partnership of public agencies that come together to
collectively exercise common powers to achieve certain common goals. And in
the mid-1980s the Bureau of Reclamation decided that it wanted to turn over
the operation and maintenance of certain of its major facilities to its
contractors. And so one of those facilities was the Friant Kern Canal, which
is a 135 long mile canal that runs from Friant Dam to South of Bakersfield
that delivers water to the Friant contractors along, in Fresno, Tulare and
Kern counties. And so the Bureau of Reclamation came to the Friant contract
and said we'd like you to form a joint powers authority that can then take
over the operation and maintenance of the Friant Kern Canal. That was
interesting to those contractors because they thought they could do it
better, faster, cheaper than the Federal Government could and thereby save
themselves some money and have a little more control. So they formed the
Friant Water Users Authority for the purpose of becoming the contractor that
would take over the O and M of the Friant Kern Canal. And, indeed, they did.
They were the first federal contractor in the CVP to take over an O an M,
operation and maintenance of their facility. However, that was in 1985 and 6
that that took place. It was shortly thereafter that the Friant long term
contracts for water service with the Federal Government began to expire, and
so it became sort of a natural adjunct of the Friant Water User's
Authorities function to kind of be the spearhead of the contract renewal
effort, which at the time everyone thought would be non-controversial, the

contracts would just be renewed for another 40 year period and people would
get on with their business. Well, it turned out that it wasn't quite that
way because the environmental community decided they wanted to file a
lawsuit over contract renewals.
>> Thomas Holyoke: You speak for, can I get this, a couple of clarifying
questions here. When we talk about the Friant Water Users, we're talking
about the irrigation and water districts that draw water out of the Friant
Kern Canal?
>> Gary Sawyers: Well, they're the districts that contact with the Federal
Government for a water supply from Friant Dam for use off of the Friant Kern
Canal.
>> Thomas Holyoke: Okay, let's go to one that's, why would the Bureau be
interested in turning over operations and maintenance?
>> Gary Sawyers: To get out of that business. There is a cost involved with
that. There was, at the time, remember this was the mid-‘80s, President
Reagan was in office and there was a movement towards decentralization and
so getting these kinds of functions closer to those that utilize those
functions. So the Federal Government really wasn't that interested in
continuing to operate and maintain these canals, the local folks were, and
it was consistent with sort of the political theme of the day.
>> Thomas Holyoke: Was there any interest in selling the canal and Friant
Dam to the users?
>> Gary Sawyers: There has been talk over the years of allowing different
CVP users to purchase some or all of the Central Valley Project. There was
actually a significant effort to accomplish that some number of years ago.
It hasn't happened. There are a variety of reasons why people might or might
not want to do that. Obviously owning those kinds of facilities carries with
it a certain level of risk. A dam can crack, or worse, especially an old
dam, and most of the CVP facilities are quite old. And there are concerns
about do the local folks really want to own those facilities? Would it be
better for the Federal Government to continue to own them? So while there
has been talk about it, it's never happened. It has happened in other places
across the west, however. There have been instances where the Federal
Government has conveyed title to facilities to the local folks, so it's not
without precedent
>> Thomas Holyoke: Okay, back to the new contracts and the environmental
communities that were taking an interest in this. What happened? And this
is, 1988, you said?
>> Gary Sawyers: 1988. The Federal Government announced through, in part the
work of the Friant Water Users Authority as well as all of its members,
announced that it was going to renew these contracts essentially without
much change and allow the water to continue to flow as it had for 40 years.
And in December of 1988 there was a coalition of environmental groups let by
the Natural Resources Defense Council, NRDC, that filed a lawsuit asserting
that the Federal Government had failed to comply with procedural
requirements of the National Environmental Policy Act, NEPA, and the
Endangered Species Act, the ESA in connection with this proposed renewal. In
other words their original complaints that the, that the Federal Government
couldn't renew those contracts as they proposed to until they completed

jumping through some procedural hoops. They had to do some studies. They had
to make sure that the terms were the most environmentally friendly terms
that they could sort out. Later, that lawsuit was amended to include a new
claim for the failure to operate the Friant division, in particular the
Friant Dam, in compliance with a California Fish and Game Code Section,
Section 5937, that requires releases to keep fish life below the dam in good
condition. And ultimately while the contract elements of that lawsuit were
very important, and in effect the environmental community won that lawsuit
and required the contracts to be renegotiated post CVPIA because the
lawsuits spanned the time period before and after the enactment of CVPIA.
The real thrust of the lawsuit became the environmental restoration of the
San Joaquin River. And it was that lawsuit that ultimately led to the San
Joaquin River Restoration Program that's now going on.
>> Thomas Holyoke: Did CVPIA play any real role in the litigation over
Friant Dam?
>> Gary Sawyers: It did. There were motions to either dismiss or amend the
lawsuit based on CVPIA once it came into place that really didn't go
anywhere. The lawsuit really wasn't about CVPIA ultimately. The lawsuit was
about NEPA, Endangered Species Act and then ultimately this section 5937
claim.
>> Thomas Holyoke: The use of NEPA and [sic] ES, the Endangered Species Act
in the original litigation, was there any precedent for that? Was this a new
thing the environmentalists were trying?
>> Gary Sawyers: No, the environmental community has, or had, for many
years, and to this day continues to utilize NEPA claims and Endangered
Species Act claims as vehicles to challenge federal actions that they think
were not done appropriately in accordance with those statutes. NEPA is a
purely procedural statute. NEPA requires a study to be conducted of some
kind of certain federal actions before they can be lawfully taken. And then
depending on the results of those studies the actions are to be tailored to
minimize environmental impacts. But NEPA is entirely procedural and doesn't
mandate any particular course of action. The Endangered Species Act contains
both procedural elements, just like those in NEPA, you have to prepare
certain studies and consult and do certain other things with, internally
within the federal government, but the Endangered Species Act also has
substantive revisions that says you may not do certain things at all if they
would have certain impacts on species that are listed under the Endangered
Species Act.
>> Thomas Holyoke: Now this provision from California Game Code on operating
a dam and the fish populations in the river, how does a state law apply to a
federal project?
>> Gary Sawyers: That's an outstanding question and that was litigated. And
the answer is through section 8 of the Reclamation Act of 1902. The
Reclamation Project was originally authorized in 1902. It was a Teddy
Roosevelt concept. And section 8 of the 1902 Act says that the Federal
Government in building and operating projects under the reclamation law must
comply with state statutes that govern the distribution of water. And sort
of very briefly summarized that means that Federal Government has to go get
state water rights in order to build and operate their projects. One of the
key rulings in the NRDC litigation was whether or not section 5937, this
fish and game code section, is a state law that governs the distribution of

water. If it is, then it is applicable to a federal dam. If it's not, then
it's not. And Judge Carlton, the judge in the case and ultimately the ninth
circuit, the appellate court ruled that section 5937 is, in fact, a state
statute that governs the distribution of water and therefore Federal
Government is bound by it.
>> Thomas Holyoke: In this litigation, who actually were the plaintiffs? Who
brought these?
>> Gary Sawyers: It was a group of either, I believe it was 14, it might
have been 15, environmental groups and fishing groups. The leader was the,
as I said, the NRDC, the Natural Resources Defense Council, but they had a
number of other groups that they institute, the California Sport Fishing
Protection Alliance, if I recall correctly, and the Pacific Coast Federation
of Fishermen, I believe the Audubon Society was a plaintiff. It was a very
broad coalition of conservation, environmental and fishing groups that came
together and brought the suit. And that same coalition stayed with it
throughout the entire history of litigation.
>> Thomas Holyoke: And were they just suing the Interior Department or was
the Friant Water Users Authority actually a part of the case at the
beginning?
>> Gary Sawyers: Yes, at the beginning, the Friant Water Users Authority was
a party to the case. And the environmental plaintiff said that the reason
that they did that is they said they understood the water users would want
to have a representative in the case, so they thought they would make it
easy and sue not only the Federal Government but the Friant Water Users
Authority. That wasn't sufficient for most of the contractors who wanted to
have a direct voice rather than an indirect voice through the authority, and
so most of the Friant long term contractors intervened in the case. That is,
they petitioned the court to be allowed to become parties to the case. And
they were allowed to be parties to the case. So while the Friant Water Users
Authority was a party to the case throughout its entire history, so were a
great many of the contractors individually.
>> Thomas Holyoke: Okay. And at this time you were attorney for Friant
Authority or just for some of the districts in the Friant Authority?
>> Gary Sawyers: I was the attorney for the Friant Water Users Authority.
>> Thomas Holyoke: So when did we get the final decision? I mean, let me
backtrack on that. I guess what happens is we have a ruling at some point
from Judge Carlton upholding the application of the California Fish and Game
Code, but then the settlement happens before he actually decides what
remedy, I'm sort of stumbling through my legal terms here.
>> Gary Sawyers: The litigation lasted from 1988 until, I believe it was
2006, may have been 2008, so it was the better part of two decades. The
litigation went through a number of different stages. Initially there were a
number of motions, attempts to get temporary restraining orders, things like
that. Once the parties got through all of that, they began a more normal
course of litigation, if you will and there were various hearings on various
key issues like the 5937 issue. But that all took a great deal of time and
it stretched out over a number of years. At some point, and I will have this
chronology a little bit wrong, but after roughly 10 years or so of
litigation there was the first effort made at serious settlement talks. And

the litigation was sort of put on hold for quite a while, while there were
efforts to settle. Ultimately the Water User's and the Federal Government
and the environmental plaintiffs decided to conduct some joint studies to
develop information to hopefully inform a settlement. So again, the
litigation was more or less on hold. There were funding for these studies.
That process carried on over the course of two or more years where there was
actually some fairly cooperative activity. There was an effort towards the
end of that to use the information to bring together a settlement. It failed
and the parties returned to court. When the parties returned to court it was
shortly thereafter that Judge Carlton ruled pretty definitively against the
Water User's and the Federal Government and, I think this is what you're
referring to, announced that in fact there would have to be a remedy
imposed. Some sort of water was going to have to be released from Friant Dam
and their only question, really, was how much. And at that point the parties
returned to the negotiating table and that's when the settlement that's now
in place was ultimately negotiated.
>> Thomas Holyoke: The first attempt at a settlement before Judge Carlton
ruled you said had failed. Why did it fail?
>> Gary Sawyers: The, at the risk of sounding flip, the parties just
couldn't quite get there. The environmental community wanted, I think, a
little bit too much. The Water User's and the Federal Government weren't
prepared to give the environmental community what it was looking for. They
thought the cost, the impact, would just be too great. And while the parties
got close, they actually had engaged a mediator from the 9th circuit, the
chief mediator from the 9th circuit court of appeals who was mediating. And
the parties got very close. And frankly I think if they had spent another 90
to 120 days at the negotiating table we probably would have reached a
settlement. But there was a fairly definitive deadline that was, somewhat
arbitrarily, but it was nevertheless imposed, the parties couldn't get there
and as a result the environmental community said we're done. We're going
back to court.
>> Thomas Holyoke: Before Judge Carlton actually ruled, did you have a
pretty good sense as to what he was going to do?
>> Gary Sawyers: Judge Carlton had, infrequently if ever, ruled in favor of
the Water User's or the government in the case, so there was not a
tremendous amount of optimism that he was going to rule in favor of them. It
was, I think most people thought it was pretty clear that Judge Carlton was
going to find that there was going to have to be some water, at least,
released from Friant Dam.
>> Thomas Holyoke: So Judge Carlton rules and then how do we get to
settlement?
>> Gary Sawyers: There was a very significant effort, with which I was not
involved. I left the Friant Water Users Authority shortly after the first
round of settlement negotiations fell apart, so I was, once again, an
observer, not a participant. But there was an extraordinary effort on the
part of a handful of individuals, the entire Friant Division, as a whole,
was very involved, but there were some very dedicated individuals who spent
an enormous amount of time, thousands and thousands of hours, negotiating,
the same is true on the environmental side and on the government side. And
there was ultimately some more studies done and ultimately there was a
settlement reached.

>> Thomas Holyoke: The Friant Water User's, the people you were
representing, I mean, did for the most part through all these years of
litigation were they really interested in fighting? Had they wanted to try
to settle early in the litigation?
>> Gary Sawyers: I don't think they were terribly interested in settling
early in the litigation because I think they felt genuinely and strongly
that they had done nothing wrong and that there was no reason to take any
water from them. They felt very strongly that Congress had been clear when
they authorized the Friant Project that Congress meant to dry up the San
Joaquin River and indeed Congress did mean to dry up the San Joaquin River.
And so that there had been nothing wrong with what had occurred. As time
went by, as the litigation progressed, I think attitudes evolved. Not that
anyone in the Friant division thinks they every have done anything wrong.
But, I think they began to realize that there were legal and regulatory and
political realities that were going to be brought to bear. And, I think, the
desire to try to find a mutually agreeable settlement began to grow as
people began to see that maybe, while they thought they had the right
position, they didn't know that they had the prevailing position.
>> Thomas Holyoke: This piece of California State Law that so much is turned
on, I assume that had probably been in California law for a while. Has no
one noticed it or the Bureau assumed that it didn't apply to them or?
>> Gary Sawyers: Well, I think the Bureau assumed that, and not just the
bureau but the entire Federal Government assumed that when Congress said we
mean for you to dry up the San Joaquin River we meant for you to dry up the
San Joaquin River. When the Federal Government, under section 8 of the 1902
Act went to the State Water Resources Control Board to get the water rights
that it needed in order to operate the Friant Project, it resulted in
something called Decision 935 of the State Water Resources Control Board.
And, Decision 935 is fairly clear that we know you're drying up the San
Joaquin River and we understand that's going to have an impact. But, most of
the impacts have already been felt and we've considered all that in our
order. And so we, the State Board are not going to impose any mitigation
requirements on you for environmental purposes. So, I, I think the, the
sense had been that yes 5937 existed in the law. But, it had been
considered, Congress had acted, and that everyone was acting in accordance
with the law. And it was only when Judge Carlton ruled that 5937 applied and
had been violated that anyone understood that was the case.
>> Thomas Holyoke: Okay. And so, soon after Judge Carlton's ruling you said
you were no long, were no longer involved in the litigation.
>> Gary Sawyers: Actually, I wasn't there when Judge Carlton finally issued
the ruling. I departing from Friant shortly after the original settlement
effort terminated. That's when people went back to court. And, when they
went back to court that was when Judge Carlton ruled and I had departed
before then.
>> Thomas Holyoke: Okay. So, you're, sort of, involvement with this ends at
that point in time.
>> Gary Sawyers: Other than as an interested observer.

>> Thomas Holyoke: Well, as an interested observer, what's been your
impressions about the settlement, the way settlement's been implemented and
what's happening today?
>> Gary Sawyers: The settlement was, I think, something that a lot of people
felt was in the best interest of Friant. I think they felt that it was
better to give up the water and other resources, money, etcetera that they
gave up in the settlement than it was to run the risk of having a Federal
District Court judge decide how much water should be released. The
settlement was structured to have two coequal goals. One is called the
Restoration Goal, that's the environmental goal to bring anadromous fish
back to the San Joaquin River below Friant Dam. And the other was called the
water management goal. The water management goal is, in effect, to eliminate
or at least minimize the water supply impacts on the Friant contractors as
the result of the settlement. Those two goals, as I said, are expressly
coequal in the settlement. And so, under the circumstances it's easy to see
how the Friant contractors can say well we don't really like this from a
water supply standpoint. But, it sounds like we'll get most of our water
back and it sounds like this is, it will, it will accomplish environmental
benefits that will good all-around and this is a better way to go than
simply being ordered to release a bunch of water that we have no chance
whatsoever of ever getting back. So, I certainly understand why the
settlement was reached. Now, as the settlement has been implemented, I think
it's fair to say that the two coequal goals have not been coequal. The
restoration goal certainly has been pursued. The water management goal has
kind of taken a backseat. Indeed, some of the same folks that were
plaintiffs in the litigation that led to the settlement have been plaintiffs
in other lawsuits that have, essentially, precluded the water management
goal from ever being implemented because the water management goal requires
recirculating water mostly through the Delta. And, because of some lawsuits
that have further constrained the ability to move water through the Delta,
the, that recirculation and therefore the water management goal has been
rendered much more difficult to achieve. So, as the, as it was implemented,
the settlement, I don't think, was what the Friant folks thought they had
bargained for.
>> Thomas Holyoke: Okay. Anything else on this one?
>> Gary Sawyers: Well I guess I would add this. The cost and the difficulty
of the restoration program has been significantly greater than, I think,
folks anticipated early on or at least the advertised numbers early on. It
has taken much, much longer to accomplish some of the physical changes in
the river that everyone knew were going to be necessary. The river had been
without water for over half a century. I don't understand all the technical
issues. But, basically, the river had become more or less petrified. And,
rivers are actually sort of living things. They move and they shift and this
river is not going to move and shift until a lot of physical changes take
place. Everyone thought, or at least in the environmental community thought
that those changes would take place much more quickly. They haven't taken
place. As a result, flows that are released are not doing what they thought
they were going to do. So, there's still a great many challenges to be
overcome if the restoration program is going to go forward. And, there are a
lot more voices these days speaking a lot more loudly suggesting that the
restoration program, perhaps, needs to be revisited.
>> Jim Provost: Gary, you're going to speak to the evolution of the Friant
Water and Authorities to how it changed over the years.

>> Gary Sawyers: Sure. The, as I mentioned, the client that I represented
was called the Friant Water Users Authority. Right about the time that I
left, the authority was going through some internal discussion about whether
or how it should restructure itself. And, there were some issues related to
a provision of the Joint Powers Agreement, which is the thing that binds
them together as a Joint Powers Authority, that was commonly referred to as
the Russian Veto which reportedly gave each member the authority, the
ability to block certain kinds of actions. And, that was becoming
controversial internally within the authority. And there was some move to
change that. And, some folks felt very strongly that it needed to be changed
and other folks felt very strongly that it should not be changed. The end
result was that there was a new authority formed, sort of, parallel
authority, parallel to the Friant Water Users Authority called the Friant
Water Authority. And, it was, essentially, the most of the same folks and
ultimately it became all of the same folks. But, the Friant Water Authority
was formed by folks that wanted to make some changes in the Friant Water
Users Authority. Ultimately, the Friant Water Users Authority, well, I don't
believe it exists anymore. If it does, it's just a shell. The Friant Water
Users Authority ceased to be the operating entity and everything moved over
to the Friant Water Authority with a couple fewer members. But, still, with,
essentially, the same purpose and, and the same staff, same management the
same board, that sort of thing.
>> Jim Provost: And then, where is it today?
>> Gary Sawyers: Well, that's a very good question. The Friant Water
Authority, over the last year or so, has gone through some very difficult
times. Their long term general manager has departed and a number of
districts have withdrawn. I don't know the exact number. When I was
representing the Friant Water Users Authority, I believe there were 25
members. That's out of 28 total long term Friant contractors. I think the
Friant Water Authority probably had something more along the lines of 22 or
23. But, there had been a number of departures over the last year,
particularly within the last month. My understanding is they're down 10
members now. And, there have been, sort of, more regional groups of Friant
districts that have formed to sort of advocate for their own interests. And,
the Friant Water Authority is not, does not represent even a majority, as I
understand, anymore of the Friant districts. So, the Friant group has become
more fragmented. That doesn't mean they can't and won't work together. It
just means the old Friant authority is not really the spokesperson for all
of Friant the way it used to be.
>> Thomas Holyoke: Is that, that Friant Water Authority still has operation
maintenance responsibilities for the Friant Kern Canal even though it's
down?
>> Gary Sawyers: It does. And, I believe it will probably continue to. When
the operation maintenance responsibility was moved from Friant Water Users
Authority to Friant Water Authority, It was an enormous amount of effort
that I think people probably want to avoid. So, I suspect the Friant Water
Authority will continue to perform the operation and maintenance function.
But, whether it continues to perform other functions, advocacy and that sort
of thing or whether other groups take that over, I think, remains to be
seen.

>> Thomas Holyoke: If the authority falls apart entirely, does
responsibility revert to the Bureau?
>> Gary Sawyers: I guess that it would. I am not familiar with the agreement
between the Friant Water authority and the Bureau. I'm not sure the Friant
Water Authority really has the option to just go away under that agreement.
So, now, but as a practical matter, the Bureau would have the authority, I'm
sure, to step in and resume operation and maintenance tasks. I don't think
anybody within Friant wants that. One of the things that the Friant Water
Users Authority and other joint power authorities that have done similar
kinds of things around the state have proven is that, indeed, the can
operate and maintain the facilities better, faster, cheaper, than the
Federal Government can. And so, folks are, generally, very happy with that.
And, I can't imagine anybody would want to see the Bureau of Reclamation
have to get back into that business, including the Bureau of Reclamation by
the way.
>> Thomas Holyoke: Any questions on that?
>> Jim Provost: Nope that's it on that one.
>> Thomas Holyoke: Okay. Let's jump over to the Kings River.
>> Gary Sawyers: Okay.
>> Thomas Holyoke: What's been your involvement with the Kings River?
>> Gary Sawyers: The Kings River, is about a million acres of highly
productive farmland, or I should say serves about a million acres of highly
productive farmland. It also provides water to a few cities, not the least
of which is the city of Fresno. My longest client on the Kings River is the
Kings River Water Association, the, which we call the KRWA. The KRWA is
comprised of 28, what they call, member units. Some of them are public
agencies, districts, others are canal companies, mutual water companies.
Collectively the 28 member units have all the water rights on the Kings
River. And, collectively, they have all the storage, conservation storage in
Pine Flat Reservoir. The KRWA was formed in 1927, essentially, as a vehicle
to settle a bunch of longstanding disputes over who had how much water on
the Kings River. Prior to 1927, the river was claimed many times over. And,
there were many lawsuits there were many weirs that were being blown up,
there were many shotgun blasts that were fired in anger. It was truly the
Wild West.
>> Thomas Holyoke: Typical water discussion in California. Right?
>> Gary Sawyers: Yeah, absolutely. And, the KRWA was formed as the result of
the state sending down an engineer, a fella named Charles Kaupke who was
going to spend, as I understand the story, about 6 months on the river and
get it all sorted out. Mr. Kaupke ended up spending 40 years on the Kings
River. And, he was the first water master of the Kings River. But, the KRWA,
basically, is an unincorporated association that brings together these water
right holders. And, they have developed a schedule so that, on any day of
the year under any flow condition, on the Kings River, you can pick out how
much water a particular member unit is to get. Over the course of coming up
on 100 years now the KRWA has developed countless agreements that's between
the members that govern a whole host of subjects. Very significant changes
took place when Pine Flat Dam was constructed in the ‘50s because the

operations of the river, obviously, changed dramatically and there were a
whole host of new agreements that had to be entered into. But, we call those
the Blue Book Agreements because they were originally bound together in a
blue book. The Blue Book Agreements are now all digitized. But, some of the
old timers out there, like me, still have a blue binder that has all the
Blue Book Agreements in them although the number is growing because they
continue to develop new agreements. And the KRWA, basically, administers the
water on the river. It's a very efficiently run river, extremely accurate
measurements. And, probably, if not the best, certainly one of the best run
rivers in the Western United States. There's a very small staff that does an
outstanding job. They have a handful of consultants that work with them. The
KRWA is principally charged with making sure the water goes where it's
supposed to go when it's supposed to go there. But, the KRWA, not unlike the
Friant Water Users Authority, finds itself often in an advocacy role or in
sort of as a forum for other issues to be addressed on the Kings River. So,
for example, in the early 1990s, there were complaints raised about the
condition of the fishery below Pine Flat Dam. And, the KRWA became the lead
agency to develop a new fisheries management program on the Kings River. The
KRWA has, occasionally, will get involved with legislation that effect all
of, that might affect its members. They are involved in groundwater issues.
They're involved in regulatory matters, all sorts of things that have an
impact. So, the KRWA handles all of those things so that they're done, it's
done very efficiently, very cost effectively, hopefully, very effectively.
And, it hopefully saves its members a lot of money and a lot of water by
managing the water supply in a very efficient way.
>> Thomas Holyoke: You said at one point that most of your work with them
has been in the area of fisheries management?
>> Gary Sawyers: Well, a significant project on the Kings was the Fisheries
Management Program. As I mentioned, back in the early 1990s there was a
complaint filed with the State Water Resources Control Board objecting to
the condition of the fishery below the dam. There were minimum fish flows
that were required below the dam. But, the fishing community, you know, the
local fishing community felt those flows should be higher. And, there was a
lengthy process, the better part of the decade, working with the fishermen
and the conservation groups, originally, as adversaries, to be blunt. The
normal reaction, when a complaint is filed, is to defend it. And so, for the
first few years it was not a collegial atmosphere at all. But then, that
evolved. And, the Kings River, which has a knack for getting out in front
of issues unlike a lot of other river systems that I've seen, Kings River
said let's sit down and talk with these folks and see if we don't have some
common goals. And, over the course of a few years, the conservation and
fishing community began to learn a lot more about the irrigators and the
irrigators began to learn a lot more about the conservation and fishing
community. And, they discovered that there really was room for some
commonality. And, in 1999, there was a document executed called the
Framework Agreement. And, the Framework Agreement sets forth a whole new
fisheries program on the Kings River that is a kind of a joint operation
between the Kings River Conservation District which is a public agency that
manages flood control and some other things on the Kings River, the KRWA,
and the Department of, what was then Fish and Game, now the Department of
Fish and Wildlife. And those, so those three came together and jointly
signed this Framework agreement that says here's how we're going to operate
the Kings River for fisheries purposes. And, as a part of that, they formed
something called the Public Advisory Group or PAG which is comprised of most
of the folks that had been the adversaries and who, I think, would probably

now, by in large, call themselves supporters of the Kings River because the
program has been enormously successful, it's been entirely collaborative,
it's been entirely voluntary. The water users have put up money. The
Department of Fish and Wildlife have put up money. The fishermen have put up
time. They haven't been asked to put up money although they volunteer to do
certain projects out on the river. There have been a number of environmental
restoration projects, spawning channels, bolder placement, tree plantings,
all sorts of things to improve the fishery conditions. There have been
enhanced flows. There's now what's called a temperature control pool that's
maintained in Pine Flat Dam, essentially a pool that insures that there will
be cool water to release when the trout need it. And, the operations of the
river have changed in order to accommodate the concerns of the conservation
and fishing communities and very successfully. And so, as a result, what had
been very contentious and could've have gone the way, for example, of the
San Joaquin River, instead has gone the way of a very, very collaborative
program that, I think, as I said, everybody would hold up as a success and
an example of how those kinds of things ought to be done. And, the river
still runs that way today.
>> Thomas Holyoke: When was this agreement reached?
>> Gary Sawyers: 1999.
>> Thomas Holyoke: Okay. In your opinion, why has it been so much more
smooth on the Kings River than say on the San Joaquin?
>> Gary Sawyers: Well, I think there are a lot of reasons. The Kings River
does not have and never has had a salmon population. The San Joaquin River
did. There's one significant difference. The folks who were objecting to the
conditions on the San Joaquin River were, by in large, national or at least
regional environmental groups that had a whole lot of agendas that they
needed to work with. The folks who were on the Kings River were, by in
large, more conservation and fishing groups who were really just interested
in just having a good fishery. And, frankly, I think the Kings River folks
learned from what they saw going on around them and they realized it was
better to try to work collaboratively than it was to fight. And, I think
they were right.
>> Thomas Holyoke: Anything else on this?
>> Jim Provost: No not on this.
>> Thomas Holyoke: Okay. Actually the next big topic is groundwater. You had
said you were involved in some of the early work on groundwater regulation
in the state.
>> Gary Sawyers: Well, the, I was referencing AB 3030 and actually there was
a predecessor statute as well. But, AB 3030 is what everyone knows as the,
sort of, groundwater management statute which was enacted many years ago
when now Congressman, then Assemblyman Jim Costa took a real interest in it.
Assemblyman Costa was always a leader in the legislature on water matters
and, of course, was from this area and very knowledgeable, very
knowledgeable about water. And so, he took an interest in groundwater way
back when and realized that the idea of regulating groundwater from
Sacramento on a kind of a one size fits all basis was not going to workable.
And, there was, at the time, a lot of talk about maybe doing something like
that. And so, assemblyman Costa developed AB 3030 which allows local

agencies who are irrigation districts, water districts, cities, counties,
and others, to manage groundwater within their boundaries to localize it, to
tailor it, if you will, to the unique circumstances of the, of the basin or
sub basin or geographic region where the agency is. And, a number of people
were very involved in the development of legislation. I was fortunate enough
to be able to work with Assemblyman Costa along with an awful lot of other
people. And, the bill became law. And, it was, it was the law on groundwater
management until about six months ago. The problem that some people saw in
AB 3030 is that it didn't really give local agencies the ability to
regulate. It gave them the authority to manage or it gave them powers to
develop projects, to monitor, to collect data, to build recharge facilities.
It gave them a lot of authorities but, it was not generally viewed as
possible to really regulate groundwater in terms of you have to only pump X
amount of acre feet or you have to impose certain fees, that kind of thing.
And, what happened in 19, excuse me, in 2014 was we've, now as a state,
we've taken the next step which is while the authority is still delegated to
locals now, the New Sustainable Groundwater Management Act which is, you
know, referred to as SIGMA, SIGMA now actually gives agencies that choose to
accept those powers, the authority to regulate groundwater extractions and
to impose fees and to, genuinely, regulate ground water at the, at the local
or regional level. So, it's sort of a, in one sense, it's kind of a natural
evolution from AB 3030. In another sense, it's a sea change because it's
certainly the first time California has adopted that kind of authority.
>> Thomas Holyoke: The new legislation that was, you know, adopted last year
in 2014, was it felt to be necessary because, under AB 3030, agencies had
the management responsibility but they couldn't stop the depletion of
groundwater?
>> Gary Sawyers: Yeah, I don't know that it's some, the new law SIGMA was so
much an indictment of the inadequacies, if you will, of AB 3030 as a much,
as much as a reaction to a number of circumstances. First there's the
drought and the prolonged drought has resulted in completely unsustainable
use of groundwater in off water parts of the state. And, folks just felt
that was not, could not be allowed to continue. But, and, that was in part
because of the drought. It's also in part because of significant cropping
changes. 25 years ago, a lot of things, a lot of areas that are in permanent
crops today, trees or vines, were either not being farmed or were in row
crops like cotton. The demands were, obviously, a lot more flexible. If you
had a particularly bad year, you didn't have to plant cotton. It's very hard
to fallow an almond tree. And so, cropping changes and, of course, the
reduction in surface supplies, particularly out of the Delta, has resulted
in more and more pull on the underground. And so, you add up all of those
factors and you've got, you know, over the last couple of years you got to
really an unsustainable place when it came to ground water usage. You were
seeing vast amounts of subsidence in certain areas. You were seeing
groundwater levels plummeting. And, I think, was it Rahm Emanuel who said
“Never let a good crisis go to waste”? I think there is an awful lot of that
in what happened last year, well just not to say it wasn't appropriate or
necessary to do something. I don't mean to imply that. But, the politics of
groundwater are complicated and the politics lined up last year to do
something. And, I will tell you that from the time the notion of doing
something comprehensive about groundwater regulation first really seriously
arose in the legislative arena until the time the legislation was completed
and enacted and signed by the governor was, probably, well less than six
months, probably more like four months, which is just light speed. And, that
was, as I said, because of the very demonstrable crisis that we have.

>> Thomas Holyoke: Is the current law going to be adequate to prevent the
completion of aquafers in your opinion?
>> Gary Sawyers: That depends on if people give it a chance to work. The way
the law is structured now is that local agencies are given the first shot at
managing and regulating groundwater. If they choose not to take it, then,
the state will step in. If they choose to, if the local agencies choose to
take groundwater management up and if they don't meet certain deadlines or
do certain things or hit certain targets, then the state will step in. So,
there is, at all points along the management path, there is the omnipresent
threat of the state stepping in. And, by the state, I mean the State Water
Resources Control Board. Well, the State Water Resources Control Board does
not have the resources to be able to do countless basin or sub basin
specific management plans that are nuanced and that deal with all of the
unique circumstances that you'll find in each of these different regions.
The State Board, while filled with qualified staff, just doesn't have the
ability to do that. And so, almost certainly, if the State Board has to step
in, then, what it's going to do is impose pumping restrictions which they
have the authority to do under the law because that's the quickest way, the
most sure way to get to sustainability. You decide what the safe yield of
the basin is, and you divide it by the number of acres in the basin, and you
say that's how much you can pump per acre. Maybe it will be a little more
sophisticated than that but probably not a lot. Should that occur, I think,
you'll see an awful lot of litigation.
>> Thomas Holyoke: Have you been representing a lot of farmers or public
agencies in regards to management of groundwater?
>> Gary Sawyers: Yes I have.
>> Thomas Holyoke: Any particular trends and concerns or trends and
litigation that are important?
>> Gary Sawyers: Well, there are several things, the, first the new law is
so new that people are still grappling with how to implement it. The first
step is to decide who is going to be what they call the ground water
sustainability agency for a basin or there may be multiple agencies GSAs.
People are struggling with that right now. So, we don't even know what the
plans are going to look like by and large. So, people are aggressively
working to try and figure out how to do all of that. Farmers are very, very
concerned that the groundwater they relied on will no longer be available to
them. So, they're concerned about that. But again, we don't know how things
are going to shape out or shake out. A lot of people are considering whether
they want to go directly to an adjudication proceeding. An adjudication is a
court proceeding where all of the pumpers within a basin or sub basin are
before the court and the court ultimately will decide, usually through a
settlement, but ultimately will decide who has what rights to pump. Once
that's done then the SIGMA is no longer applicable because, by definition,
the basin is sustainable. And, there are a number of folks who are wondering
whether or not it would be better to just dive into an adjudication. The
problem with adjudications, well there are many problems, but the biggest
problem is that they tend to take a long time and cost a lot of money
because they are very complicated. And, by a long time, I mean sometimes
decades. And, that decades’ worth of litigation creates a lot of uncertainty
as well as expense. And, particularly in larger basins, it could be
extremely complicated and disruptive. And so, the notion of diving into an

adjudication for example in the basins and the central valley, it might be
appetizing to a number of water litigators, I don't litigate by the way, a
number of water litigators who could put their great grandchildren through
college. But, it may not be very appetizing for a lot of other folks. On the
other hand, SIGMA is riddled with opportunities for people to bring lawsuits
as well. And, if they bring those lawsuits, deadlines may be missed. If
deadlines are missed, the state may take over, pumping restrictions may get
imposed, that will trigger people to file adjudications. So, that's why I
said, in response to your initial question, it's going to depend on whether
people give the new law a chance to work. If they do, then, the new law is
far from perfect. It has plenty of problems with it. And, it's probably
going to have to be adjusted as those problems become more and more obvious.
But, it does have the basic cornerstone of letting the local folks manage
based on local needs and local circumstances. If people don't give it a
chance to work, then, it will fail and we will probably end up with a lot of
adjudications that 50 years hence will result in groundwater being
sustainable but it could be a rocky next few decades.
>> Thomas Holyoke: What about the selling of groundwater? It is one of the
complaints I've heard the last couple of years of individual farmers or
maybe even districts, you know, pumping out groundwater and then selling it
to other irrigation districts who are looking to buy water.
>> Gary Sawyers: Well, that will be addressed in a SIGMA plan, it will also
be addressed in an adjudication. There are certain California Water Rights
laws that relate to ground water. And, in some instances, those kinds of
transactions are within the rights of the parties. And, in some instances,
they probably aren't. And, you know, it's hard to make a sort of across the
board comment on is selling groundwater a good thing or a bad thing because
it just depends on the circumstances.
>> Thomas Holyoke: Do we have a well-developed, well-running, well, I guess
for lack of better way of putting it, a water market? How easy is to
transfer water around the state? This goes back the way, you were talking
about the Dudley Bridge, and the attempt to buy water from other parts of
the state.
>> Gary Sawyers: The water market in California is still in its infancy
especially as compared to a lot of other arid western states. There are, or
in some other countries, in Australia, for example, if you want to order
water, you can simply get on the internet and order X amount of water and it
shows up. It's very transparent in certain water sheds. And, it's almost
like turning on the tap. And, in some other Western States, the water market
is much older than it is here in California and therefore much more
understood, much more transparent. California has a long and rich history of
moving water around. But, it has moved it through the projects. It has, you
know, the CVP, the State Water Project, that's moving water for money. Those
are really all just water transfer projects in some sense. And, water
managers have a long history of moving water back and forth as between
districts. District X doesn't need this water that it has right now,
district Y does. District Y's going to have some water later when District X
can use it. So, they work in exchange. Those kinds of things have happened
for decades and have worked very well. What hasn't happened is a true robust
water market. The regulatory political, in some cases, physical, in some
cases political hurdles to moving water can be pretty significant. And, the
impediments to, you know, sort of getting into the water market can be, can
be significant as well. And so, it can be very, very challenging to move

water. Some opportunities to move water on a kind of spot market basis arise
quickly. They have to be acted upon quickly. And, if there's a 6 or 12 or 18
month process you have to go through, the opportunity has come and gone long
before you have had a chance to move the water. So, there will have to be a
number of changes made in order to make a water market more of a reality in
California than it is right now.
>> Thomas Holyoke: Well, we've probably just about exhausted you here so. I
do have one other kind of question that, it's, as a lawyer, do you think our
water laws in this state are in need of an overhaul. It seems to me we have
an incredibly complicated system, you know the old riparian rights, the
appropriative rights, attempts to merge them together. We have, you know,
water pre, post 1914, county, aborigine statutes, public trust doctrine,
that's just on surface water. Then we have, I guess, this new regulation's
coming up on ground water. Is something wrong with our water law in this
state?
>> Gary Sayer: Well, it is a real patch, patchwork. And, in a perfect world,
if people have the time and resources and could sit down and thoughtfully
recast all of our water laws, it would probably be a worthwhile exercise.
But, the dislocation that would occur, for example, there is a movement
across some of the west to do away with the doctrine of prior appropriation.
California is the only state that has both riparian and appropriative
doctrines in it. Most states in the west just have the appropriative
doctrine. And prior appropriation says first in time first in right. We have
that doctrine here in California. A lot of people would like to do away with
that because, typically, the folks that have the oldest rights tend to be
irrigators because they develop projects first for the most water and they
are there for at least under the doctrine of prior appropriation senior to
some municipalities. Well, municipalities and others would like to change
that. And, if you did away with the doctrine appropriation then you would
completely reallocate water supplies. Well, societally that might makes some
sense. But, the dislocation that would result from that strikes me as being
awfully difficult for use to handle. So, while in a perfect world, I'd like
to see a much cleaner water law in the State of California, I don't know
that, from a practical standpoint, it's doable.
>> Thomas Holyoke: Okay. Anything else you want to ask?
>> Jim Provost: I think you covered the basement.
>> Thomas Holyoke: Anything else we need to talk about?
>> Gary Sawyers: I don't think so.
>> Thomas Holyoke: Thank you very much.
>> Gary Sawyers: Thank you.

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