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Groundwater: Desert valley plan could price farms out of business

Issue Date: October 21, 2020
By Christine Souza

As local groundwater agencies throughout California consider how to implement the Sustainable Groundwater Management Act, two lawsuits against a Kern County groundwater sustainability agency show the potential implications for agriculture and other businesses with historic, overlying water rights.

The cases involve the Indian Wells Valley Groundwater Authority, a groundwater sustainability agency overseeing a critically overdrafted aquifer that covers part of eastern Kern County and parts of Inyo and San Bernardino counties.

At issue is the authority's draft groundwater sustainability plan, or GSP, that includes a $2,130 per acre-foot water-replenishment fee that would be charged to certain groundwater users during a five-year period. The fee is intended to raise money to buy outside water to replenish the overdrafted desert aquifer. Currently, the area has no direct infrastructure for moving water to the region.

"This is what we feared as a potential worst-case scenario of SGMA implementation. The groundwater sustainability plan in this area unduly restricts agricultural water rights—overlying groundwater rights—to the detriment of the agricultural landscape," said Chris Scheuring, California Farm Bureau Federation senior counsel.

One of the lawsuits against the Indian Wells Valley GSP, brought by Mojave Pistachios, asserts the agency's plan is unlawful for a number of reasons, including that it doesn't consider common-law water rights and its water extraction fee violates SGMA. The company also seeks more than $255 million in damages for the zero allocation of groundwater the agency allotted to the farm unless the farm paid the large replenishment fee.

"For this groundwater basin, it looks like agriculture is going to be written down quickly," Scheuring said. "This is because in the draft groundwater sustainability plan that was developed, agriculturalists are expected to pay a $2,130 per acre-foot water replenishment fee, which is just not tenable; no farmer can afford that."

He said he expects farmers in other water-short basins will hope their GSPs don't look the same.

"By proposing this exorbitant replenishment charge to farmers for water, it is effectively saying, 'You're not going to access your overlying rights in the basin until you pay this fee,' so, in that scenario, agriculture is largely going to go away in that particular basin. It's one of the first groundwater sustainability plans we're seeing that could wholly restrict agriculture in a water-poor area, while ignoring overlying rights and preferring other, non-agricultural users in the basin," Scheuring said.

CFBF and Western Growers sent a letter last week to authority chairman Mick Gleason, who is also a Kern County supervisor and former commanding officer of the Naval Air Weapons Station China Lake, which is located within the basin.

In the letter, the two agricultural organizations said it was "shocking" the amount of water the authority planned to reserve for the Navy, which they described as "expressly not subject to SGMA or the plan." The farm groups said the Indian Wells Valley GSA "denies overlying landowner farmers any groundwater allocation at all, unless they pay the authority $2,130 per acre-foot. This egregious plan contradicts the express provisions of SGMA and will decimate agriculture in your basin area."

CFBF and Western Growers urged the authority to revise its GSP to "fairly and objectively take into account the needs of agriculture, and dispense with the pretext of reserving water for the U.S. Navy, since it is not subject to the plan in the first place and has otherwise openly expressed a need for less than 25% of the groundwater you have allocated to it."

Scheuring said because the Indian Wells Valley Basin is in critical overdraft, reduced groundwater use would be required, but he said the GSP has significant flaws.

"As a current and primary land use, agriculture should be treated in the top tier of water use, due to its overlying water rights," he said.

Both the Mojave Pistachios lawsuit and a separate suit from Searles Valley Minerals—a large employer and holder of the most senior water rights in the basin—criticize the Indian Wells Valley GSP for prioritizing water for the naval air station at the expense of other water users.

Scheuring said the Navy maintains federal reserved water rights, which means the naval air station "has this right to draw from the water underneath it, not only for current needs, but potentially future needs."

Eric Garner, an attorney representing Searles Valley Minerals, said its lawsuit focuses on the water-replenishment fee, which would hike the company's water costs by 7,000%.

"Arbitrary taxes and fees that ignore historic water rights threaten to wreak havoc on businesses and industries," Garner said. "The outcome of this litigation will have far-reaching implications for every groundwater agency and every business that holds a water right in the state of California."

In an interview last week on the Maven's Notebook water podcast, Garner said SGMA "states in multiple places that local agencies could not determine water rights, so water rights determinations are reserved for the courts."

CFBF environmental policy analyst Justin Fredrickson said SGMA prohibits groundwater sustainability agencies from determining underlying water rights, but also requires GSAs to bring their basins into balance during a 20-year period. SGMA grants the GSAs broad authority to do so, Fredrickson said, including the authority to limit extractions through fees, regulations and allocations of total available water.

Meanwhile, the state Department of Water Resources has been conducting technical reviews of GSPs submitted to the department earlier this year, including that submitted by the Indian Wells Valley authority.

DWR has two years from the time GSPs were submitted to complete its evaluation and assessment of the plans. DWR information officer Joyia Emard said the agency remains on schedule to meet that timeline.

For plans to be approved, Emard said, they "cannot have any significant deficiencies in any of the 10 criteria, including that GSPs consider the interests of beneficial uses and users in the basin."

GSPs for the remaining high- and medium-priority basins are due to DWR by Jan. 31, 2022.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.




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