A retired manager for Pacific Gas and Electric Co. believes Tuolumne County already owns water rights under provisions included in a 1983 agreement with the utility giant, but the attorney for the area’s premier water and sewer agency says it’s not so clear due to the complexities of modern water law.
The arguments resurfaced this week after Tuolumne Utilities District, the main water supplier for most of the county’s population, announced that PG&E has halted years-long negotiations between the two entities on a possible deal for TUD to acquire some of the company’s assets and water rights in the South Fork Stanislaus River watershed.
According to information provided by TUD, PG&E has indicated the pause could last through at least 2023 due to PG&E’s “desire to re-evaluate its long-term strategy on how best to optimize ownership and operation of its power generation assets.”
Officials at TUD, which has long coveted control over the water supply that’s currently owned by PG&E and provided to the district free each year under the 1983 agreement, expressed frustration over coming so close to achieving what has eluded many others in the past.
“It is frustrating to have come so close to finalizing an agreement to gain local control of these PG&E assets, because of just how much it would have benefited everyone in the county,” Barbara Balen, president of the TUD Board of Directors, said in prepared remarks.
Opponents ofa TUD acquisition of PG&E water rights and assetshave seized upon several paragraphs in the 1983 agreement with PG&E for free water that they believe entitles the community to water rights.
David Sweitzer, a retired PG&E manager who has lived in Sonora for 33 years, recently made a presentation to TUD about what he believes is proof that Tuolumne County already owns rights to 37.5 cubic feet per second of PG&E water. He said TUD should address the information “for full transparency” about the now-suspended negotiations between the company and TUD, which he referred to as “this costly take over.”
Sweitzer shared a copy of a 42-page document that includes a 27-page 1983 purchase agreement, signed June 3, 1983 by PG&E people, the Tuolumne County board chair, and the county clerk, and filed with the county clerk on June 27, 1983.
Page 1 includes the subhead “1. Purchase and Sale. County hereby agrees to purchase from PGandE and PGandE hereby agrees to sell to County the Tuolumne Water System, hereafter referred to as ‘System,’ as follows:”
Page 2 includes the subhead “e. Certain water rights solely for consumptive use associated with the System, as more particularly described in Exhibit C attached hereto and made part hereof.”
Page 28 of the document attached is labeled Exhibit C, it is headlined “Water Rights Included in the Sale of the Tuolumne Water System,” and it lists diversion rights from Sullivan Creek, Curtis Creek, and Mormon Creek for 20CFS, 7.5 CFS, 5 CFS, and 5 CFS, with priorities dating to 1852, 1866, 1852, and 1852, respectively.
Asked how something like water rights can stay a secret for so many years, Sweitzer said, “I cannot answer that. It’s plain English in writing, and it’s recognized by state agencies and by the federal government in paperwork required to license the FERC-regulated projects.” Sweitzer added that PG&E has not been underhanded.
John Buckley, executive director of the Central Sierra Environmental Resource Center in Twain Harte, applauded the pause in negotiations between PG&E and TUD on Wednesday and referred to Sweitzer’s research.
“This actually makes good sense for TUD customers because newly discovered information has revealed that TUD already was granted water rights from PG&E years ago for 37.5 cubic feet per second of water,” Buckley said. “That is roughly the amount of water that TUD needs for water supply to all TUD customers. So despite misinformed claims that Tuolumne County and TUD supposedly have no water rights, in reality the Purchase Agreement of 1983 assures TUD of water rights.”
Jesse W. Barton, TUD’s Sacramento-based lawyer, reviewed the documents provided by Sweitzer on Wednesday and said that 10 or 15 years ago, he may have been inclined to accept “these arguments.”
However, since the State Water Resources Control Board began to tighten up reporting on its water-use reports and require meters on nearly all diversions about 12 years ago, Barton said it has become clear that the “water rights” listed in Exhibit C are either “not actual water rights at all,” or are “much smaller than described and not something that can be seriously considered a water supply to Tuolumne County.”
Barton said that beginning about 10 years ago, due to additional scrutiny imposed by the State Water Resources Control Board with passage of Senate Bill 8 during the 2009-2010 legislative session and related legislation, TUD began to more closely monitor water from the “water rights” on Sullivan Creek, Curtis Creek, and Mormon Creek.
Staff with TUD “realized that these diversions were not diversions of natural water from these systems, but rediversions of water that PG&E delivered into those creek systems and was then diverting that same water out of the system down gradient from the delivery point,” Barton said.
In other words, PG&E was using natural stream channels to carry foreign water — water not originating from that stream system — and move that water to different areas. PG&E did this, like many other water right owners do, to avoid building a duplicative and unnecessary ditch system when a natural system could provide the same utility, Barton said.
The use of a stream system in this manner is explicitly authorized by Water Code section 7075: Water which has been appropriated may be turned into the channel of another stream, mingled with its water, and then reclaimed. But in reclaiming it, the water already appropriated by another shall not be diminished, Barton said.
New and more stringent State Water Resources Control Board reporting requirements provided opportunity for TUD staff to review these “water rights” and determine that they are not diversions of natural water, Barton said. They are simply re-diversions of already appropriated South Fork Stanislaus water that PG&E delivered into the listed stream systems, mingled with the natural water, and then reclaimed that same amount of water from the stream system.
As a result, TUD has stopped reporting water use under these “rights” because it is now unlawful to “double report” the use of water in this manner, Barton said, referring to Water Code section 5107.
Some people may call these types of “water rights” simply “paper water rights” because they are merely claims to water with no proof of diversion and use, Barton said.
Also worth noting, Barton said, is that you cannot add up the water rights listed in Exhibit C, because the stream systems listed — Sullivan, Curtis, Mormon — either dry up completely during the summer and fall or are reduced to a trickle.
“They cannot supply any reliable water in any significant quantities during the summer and fall, which is when Tuolumne County needs the water the most,” Barton said. “The only significant and reliable water source for Tuolumne County is the South Fork… In sum, without the South Fork supply, Tuolumne County could not exist in the way residents currently see it.”
Contact Guy McCarthy at email@example.com or (209) 770-0405. Follow him on Twitter at @GuyMcCarthy.