By Mark Gutglueck
(January 8) The long-strained relations between the residents of Newberry Springs and a dozen alfalfa farmers who have flocked to that area and monopolized local water resources over the last three decades have deteriorated into open hostility in the face of the four-year running California drought. That hostility is trending toward a possible class action suit in which residents of the desert community east of Barstow would seek to ban cultivation of water use-intensive crops in arid zones such as the Mojave River drainage area.
A group of residents numbering more than 200 in the area in and around Newberry Springs have now lodged objections to the terms of a proposed water usage plan for the Newberry Springs area the Mojave Water Agency will soon place before the Riverside Superior Court. The plan, the residents maintain, will squander what remains of their commonly held supply of highly overdrafted groundwater through the continued use of “pivot sprinkling” and alfalfa farming.
Pivot sprinkling is a method of watering crops from above using giant rotating sprinkler arms radiating from a central electrically powered pivot. Residents claim that this method uses water inefficiently because of the amount of water that evaporates in the air and on the surface before ever entering the crops’ root systems. Additionally, they claim that alfalfa is a water-intensive crop that requires heavy irrigation to thrive. Meanwhile, compounding the problem, residents of the Newberry Springs are asserting, is the Mojave Water Agency’s’proposed Baja Areawide Sustainability Plan, which is now in draft form. This new plan, they say, ignores immediate sustainability issues and imposes unreasonable water use limitations and restrictions on the area’s residents and small scale farmers while doing nothing to forbid future alfalfa farming.
The problem besetting Newberry Springs has occurred within the context of a now 23-year-long effort to adjudicate water rights in the Mojave Desert that began when the city of Barstow sued the city of Adelanto and a host of other water users upstream on the Mojave River.
The headwaters of the Mojave River lie at the north base of the San Bernardino Mountains near Summit Valley and Hesperia. The Mojave River then winds into the Mojave Desert past Apple Valley, Victorville and Adelanto before reaching Barstow. It was Barstow’s contention in the lawsuit that the upstream users were overpumping from the basin and overdrawing water from the river, thereby depleting the water supply that historically had reached Barstow.
Barstow pursued its lawsuit in the Riverside Superior Court, to which the case was removed from the local Superior Court venue because of concern that cities such as Victorville, Hesperia and entities such as the Apple Valley Ranchos Water Company and the Baldy Mesa Water District might overwhelm Barstow through political influence. Then-Riverside Superior Court Judge J. Michael Kaiser heard the case in which the Mojave Water Agency, which had been in existence since 1964, sought to adjudicate the water rights throughout the portion of the Mojave Desert lying within its jurisdiction.
The Mojave Water Agency undertook a survey of water usage by all entities in the Mojave Basin during the five-year period running from 1987 to 1991, inclusive. After establishing what the maximum annual amount of water utilized by each of those entities were, the Mojave Water Agency then declared that amount to be each respective heavy pumping well owner’s base annual pumping rate. That base annual pumping rate was then subjected to a five percent “rampdown,” reduction each year for five years, so that at the end of the rampdown period, the pumpers would be allotted 75 percent of the water each had pumped during their heaviest water use year during the survey period. That allotment became each pumper’s free water allotment, such that any water use beyond that amount was deemed excessive, and the user was required to pay the Mojave Water Agency a per-acre foot surcharge for that excessive use. The Mojave Water Agency was to use the money achieved in this fashion to purchase replacement water from the State Water Project, conveyed to the Mojave Desert in the California Aqueduct.
The Mojave Water Agency was simultaneously pursuing other efforts, including both water conservation and water reuse, to maintain the level of water within the various aquifers within its jurisdiction and prevent them from falling into a state of overdraft.
Among these efforts were a series of water sustainability plans for the subareas within the entire Mojave Water Basin. Those sustainability plans were intended to map out how the locally available water would be allotted, both in terms of type of use and to which particular users.
In the area around Newberry Springs, known as the Baja Subarea, the water table lies relatively close to the surface of the desert, allowing the construction of ten man-made lakes – Calico, Cheyenne, Crystal, Great Lakes, Horton, Jody, Silver Dunes, Sundown, Wainani and Wet Set that utilize more than ten acre-feet of water annually.
Beginning in the late 1970s, alfalfa farmers growing their crop for use by dairy farms began relocating into the High Desert. Some were attracted to the area near Newberry Springs because of the availability of water near the surface, which reduces the cost of irrigation since it does not entail drawing water from deeper in the water table. When the agricultural preserve zone in the Chino/south Ontario area was lifted in the late 1990s, and land there was opened up for residential development, dairy land was bought out and many dairies relocated, with some moving their operations to Tulare and Kern counties, as well as to Idaho. As a result of this dairy migration, alfalfa farmers formerly located in the Chino Valley relocated to the High Desert.
Newberry Springs residents, who have never been overjoyed at the prospect of alfalfa farmers setting up operations in their neck of the woods, have had their discomfiture grow ever greater with the now-four-year-persisting drought. In Riverside County Superior Court, where authority over the Mojave Water Agency’s water rights adjudication process remains ongoing, Judge Gloria Trask has inherited the case from Judge Kaiser. One of the continuing issues in that litigation is the approval of the Baja Areawide Sustainability Plan, now in draft form.
In the view of many local residents, the proposed Baja Areawide Sustainability Plan is far too accommodating of the dozen major alfalfa farmers operating in and around Newberry Springs.
As water becomes less and less available with the continuation of the drought, the alfalfa farmers continue to use the same amount of water in their agricultural operations to grow one of the most water-intensive crops in California. This situation has led to a widespread local perception that the water rights of domestic users are not being protected under the current water adjudication regime administered by the Mojave Water Agency and overseen by Riverside Superior Court.
Beginning in November, local residents Linda and Wayne Snively began circulating a petition which, as of this week, had garnered the signatures of 218 residents in the Newberry Springs area. The petition states: “We the undersigned are greatly concerned with the crisis situation currently happening in our neighborhood. The health aspect of water availability, safety of emergency applications, and the economic survival of the individual citizens of this area are impacted by declining aquifer water levels. The average person cannot afford a new well in order to be able to pump clean water to exist. Example: The 1,000 private water wells no longer in production since the year 2000. This has been a contributor that negatively resulted in lower property values, and loss of local business income in the area. We live here and we want to be able to continue to live here. The time is now to define and control this situation with a workable sustainable plan that protects us all.”
Meanwhile, a group concerned about the local water situation has formed, known as the Newberry Springs Community Alliance. The alliance has created a website, the Newberry Springs Community Alliance Blotter, at which information relating to the ongoing water rights adjudication process, including the Baja Areawide Sustainability Plan and state legislative and regulatory efforts relating to water issues, are posted, together with the comments of local residents. Before posting, the blogs are passed around among the alliance’s members before one of the group’s more technically savvy participants, Ted Simpfel, mounts them on the web.
Postings on the blog with regard to the Baja Areawide Sustainability Plan suggest the Mojave Water Agency and Judge Trask have demonstrated favoritism toward the alfalfa farmers.
According to the Blotter, Trask has “taken a soft approach to coddle and minimize the financial impact upon the alfalfa farmers as the water table in the Baja Subarea have continued to drop with the draconian financial impact being placed upon the residential pumpers, a few of which may face the devastation of having to abandon their homes due to the lack of financial means to drill new wells. A new residential well that chases the ever declining water table is now costing about $30,000, far more than many on a fixed income can afford. The power costs of pumping water from deeper depths, the increased maintenance costs of replacing deep underground water pumps that have to work harder, and the degradation of the quality of deeper water, are residential damages resulting primarily from alfalfa farming.”
According to the Blotter, “When land parcels depend upon groundwater, the land is near worthless without the water. Alfalfa farmers are devaluating the value of the land of others by removing the water without care or consideration of the damages. The Baja Areawide Sustainability Plan offers residential pumpers lip-service, and, as it currently stands, is a kiss-up to alfalfa agriculture. It is a proposed 10-year (2015-2025) free pass to heavy pumping alfalfa farmers that is flawed and won’t work.”
In this way, according to the Blotter, the residents of Newberry Springs are being caught in a squeeze as the usability of their property diminishes and their property values plummet while the Alfalfa farmers prosper, which leaves them in a stronger position financially to take advantage of the holders of the remaining water rights by buying them out at rock bottom prices.
“With alfalfa farmers purchasing dormant water rights, and with new and fallow alfalfa fields being activated, unsustainable water pumping will continue despite the proposed plan,” according to the Blotter “To add insult to the massive residential injuries of unsustainable alfalfa farming, the draft plan recommends that some water rights of alfalfa farmers be purchased with tax dollars and the water rights be retired. Here we have a situation where greedy farmers established inappropriate alfalfa fields, that require a tremendous amount of water, in an arid desert of only 4-inches of average annual rainfall, and they have knowingly and maliciously damaged the residential groundwater. The retirement of water rights may sound good; but it will do little good. The alfalfa farmers have purchased and hold a huge surplus of base annual yield rights. Currently, water rights are inexpensive, some selling in the neighborhood of $400 per acre foot, or being leased on a per-year basis for $25. Some have been leased for as little as $5 because water cannot be transferred outside the water basin.”
Sentiment within the community is that the growing strength and domination of a relative handful of alfalfa farmers who have commandeered the lion’s share of the area’s water rights are threatening to put farmers who cultivate less water-intensive crops out of business.
“Pistachio farming is in harmony with the community,” according to the Blotter. “Koi farming is in harmony. Other crops that also require little water also fit well. But industrialized pivot farming of alfalfa that pumps out crop after crop, month after month, year after year, sucking dry the community’s water supply is a parasite.”
Added to this is the consideration that alfalfa farmers have been importing massive amounts of sewer sludge compost to use on fertilizing their crops.
The Sentinel has obtained a signed statement from two Newberry Springs residents, Robert Berkman and Fred Stearn, which propounds, “Since about 2005, thousands of tons of raw sewage sludge initially, and then sewage sludge compost, has been dumped at various agricultural fields in Newberry Springs. Anyone making a complaint regarding the dumping or spreading of sewage sludge compost in Newberry Springs is advised by county staffers that there is no violation in regard to the county’s health & safety code regulations for sewage sludge or in the public nuisance regulation. If all this sludge compost was being dumped in a high-income community, the county would locate some regulation to control or abate it.”
“Most Newberry Springs residents are pro-rural living but not necessarily pro-farming,” states the Blotter. “Many are pro-ranching, with horses and livestock. We can live better without the water overdrafting, the contamination of the soil, and the aroma and illnesses caused by the pathogens from freshly spread urban toxic sewer waste that go airborne for miles in the wind and permeate our homes.”
According to many Newberry Springs residents, the Mojave Water Agency and Judge Trask are perpetuating a water rights adjudication regime that is patently unjust and environmentally insensitive, rewarding profligate users of water who waste the precious elixir of life, while punishing those who are more responsible in their stewardship of the resource. “The problem appears to be the state sanctioned water rights that the farmers claim are historically theirs,” the Blotter states. “The rights are highly inequitable. Thereby, the inequitable pumping of large quantities of water for a good cause, such as agriculture, may violate the federal constitution as such heavy pumping depletes the water table under innocent others who have a historical higher residential priority right to the water under their property.”
Newberry Springs residents have expressed the belief that the Mojave Water Agency and Trask have been overly sympathetic to the alfalfa farmers.
“The court and watermaster have previously been listening to a dozen major alfalfa farmers whine of lesser profits,” states the Blotter. “It is now time that they listen to the approximate 4,700 residents who live in the Mojave Valley and depend upon the basin’s water to live. Over 2,200 live in Newberry Springs. Homeowners deserve restitution for damages.”
Among the 218 signatories of the petition are those who have made several proposals aimed at alleviating the Newberry Springs water crisis. One of those proposals is that the Mojave Water Agency’s watermaster recommend, and the Superior Court acquiesce in, calling upon the county board of supervisors to enact a ban on alfalfa and all other water-intensive crops being grown anywhere within the Baja Subarea.
“An unnatural, water-intensive crop such as alfalfa simply has no business being grown in the arid Mojave Valley,” the Blotter states. “Banning all alfalfa would address the new proliferating alfalfa fields that are not under the stipulation and would establish a precedent of uniformly addressing water-guzzling crops that are at the heart of the water overdraft problem. Farmers in the Mojave Valley’s arid desert need to switch to sustainable low water crops. The only real solution is obvious: a ban on alfalfa and other water intensive crops being farmed. Alfalfa farmers could still farm other crops.”
The Blotter states, “The Baja Areawide Sustainability Plan, a water plan that will be placed before the Mojave Water Agency’s Watermaster for approval before submission to the Superior Court, is currently weak in its resolution to seriously address the overdraft.”
In a letter dated December 5, 2014 from Robert Berkman to Mark Cowin, the director of the California Department of Water Resources, Berkman, writing on behalf of a Newberry Springs activist group called California Environmental Quality Act NOW, asserted “For many decades our Baja Subarea basin has been seriously overdrafted by less than one dozen wealthy alfalfa farmers, most of whom live elsewhere. In the 1990s, the city of Barstow sued the Mojave Water Agency and all heavy water pumpers in the Mojave River System. The alfalfa farmers, though small in number, were large in political power, and had controlled that agency for many years. The lawsuit brought by the city of Barstow was heard outside this county, in Riverside County, with the idea that that would eliminate local politics, but that wasn’t successful. Judge Kaiser had the case for a number of years, and was very accommodating to the alfalfa farmers’ interests. The judgment after trial was filed in Riverside Superior Court on January 10, 1996. It was a stipulated judgment wherein all heavy pumpers agreed to its terms in writing, except for a handful that sought additional rights outside the stipulated judgment, known, we believe as the Cardoza Group. The main condition of the judgment, vis-à-vis the Baja Subarea, was biological resource mitigation. It was designed to protect the groundwater levels at the Camp Cady Fish & Game (now Fish & Wildlife) Preserve, which consists of 1,870 acres along the Mojave River in the Baja Subarea, in Newberry Springs. If the groundwater fell below the “trigger” level established, then 5 percent annual rampdowns in the Baja Subarea were to continue annually, until the ground water rose. This condition of the stipulated judgment has not been strictly enforced. Whether the fault lies with the judge or the Mojave Water Agency for this delinquency, we are not sure.”
Berkman’s letter continues, “The Fish & Wildlife Agency is experimenting with recovery plans for its property, but in our opinion, its efforts are too late. The vegetation is dying off and sand dunes are taking over. Had the Mojave Water Agency and the court taken their responsibilities more seriously, this state preserve probably could have been saved. As part of the stipulated judgment, the Mojave Water Agency handed out base production allowances (rights to pump water based on historical use over a five year period) like candy, without any regard as to legitimacy. This is causing problems now because all those illegitimate water rights are available for lease for about $25 per acre-foot per year by the alfalfa farmers, who use those leased (and largely bogus) rights to continue overdrafting the Baja Subarea. Complaints to the Mojave Water Agency regarding parties pumping over 10 acre-feet of water annually without any right to do so have reportedly been entirely ignored, with a comment that they are ‘not an enforcement agency.’”
Furthermore, according to Berkman, “We believe, based upon a legislative counsel’s opinion, that the Mojave Water Agency has the authority to impose a pump tax on heavy water pumpers in the Baja Subarea, to purchase replenishment water, without the permission of the Riverside Court, but they show no inclination to do so.”
Berkman then referenced the Baja Areawide Sustainability Plan, stating it “does not address in any serious way many years of basin overdrafting by alfalfa farming, nor does it offer any assurances in regard to water contamination issues from fertilizers, pesticides or herbicides. The Mojave Water Agency has been led down the primrose path by the U.S. Department of Agriculture, and the interests of their clients, the alfalfa farmers. An environmental tragedy is being played out before our eyes in Newberry Springs. We have lost confidence in the Mojave Water Agency.”
On behalf of the California Environmental Quality Act NOW group, Berkman told Corwin, “We hope that you will think it proper to somehow intercede in behalf of Newberry Springs.”
In a letter dated December 31, 2014 from California Department of Fish & Wildlife Regional Manager Leslie MacNair to US. Department of Agriculture District Conservationist Holly Shiralipour, MacNair stated “It has been documented by the Mohave Water Agency as watermaster that groundwater pumping still exceeds the natural yield of the Baja Subarea by approximately 10,000 acre-feet and groundwater levels continue to decline in many parts of the basin.”
According to the Blotter, unless the Mojave Water Agency and Judge Trask reverse course, the only recourse for Newberry Springs residents may consist of launching a lawsuit in federal court.
“The alfalfa farmers year-round unsustainable water pumping, and the seizing of the groundwater of others without compensation, is a basic violation of personal property rights that probably should be addressed through a class action in federal court,” the Blotter states. “A court may rule that exercising one’s state license to pump must be reasonable and that unsustainable pumping that seriously injures the rights of other citizens is not reasonable. In short, while the state’s new Sustainable Groundwater Management Act may slowly cause a slowing in groundwater extraction, a federal class action relief may be far quicker in remedying the overdraft and awarding restitution for the harm that alfalfa farmers have done to residential and nonresidential parcels within the Mojave Valley.”
U.S. Department of Agriculture district conservationist Holly Shiralipour, whose agency has been accused by some Newberry Springs residents of being too tolerant of the alfalfa farmer’s intensive water use, told the Sentinel that neither she nor Chuck Bell, the president of the Mojave Desert Resource Conservation District, would comment on the drought situation in Newberry Springs or the propriety of limiting crop irrigation in response to it.
Joe Harter, who owns one of the largest alfalfa farming operations in Newberry Springs, said, “There is an adjudication process that is ongoing and I’d prefer not to comment or get involved in making a statement. I would only say that we are dealing with adjudicated rights, so there is a history of alfalfa farming being an acceptable use of water.”
Robert Kasner, the single largest Alfalfa farmer in Newberry Springs, told the Sentinel, “I do know that there are people who live it the area who have taken up a cause, so to speak, to save the world. Part of the problem is that if all the farming stopped it wouldn’t relieve a thing. The water would not come back to the level it was thirty or forty years ago. It is impossible to go back in time. The neighborhood group is not considering that wells built so many years ago are not as deep and they also tend to get clogged. Because the water table has dropped considerably from where it was, even if we return to a safe yield, their wells will still be dry because they are not deep enough. Those wells worked a long time ago because water was closer to the surface. That is no longer the case.”
Kasner said the crusade against alfalfa farmers was misguided because, he insisted, farming assists in maintaining the ecology of the desert rather than harming it.
“If we stop farming it would create a dust bowl,” he said. “The state has looked at the situation in north of us, in the [San Joaquin] Valley. Where farming ended, there was tremendous erosion, the soil was neglected and unanchored and the top soil blew away as dust. I am not trying to offend anyone but some people think in the most simple of terms and that if the farmers go away the problem will go away. In fact, that would be the worst thing that could happen.”
Continued alfalfa farming fits within the economic and environmental context of the Mojave Desert, Kasner said.
“The state water resources board hired hydrologists and engineers to determine if the desert is being overpumped by a huge amount as has been claimed. The state has indicated there is a happy medium between sustaining water for farming and a safe yield. The state has determined farming is hugely important with respect to the desert.”
Kasner said he and the other farmers in the area have played by the rules and now others want to change the terms of the game they have abided by for so long.
“In 1990, the Mojave Water Agency created a water adjudication process,” Kasner said. “They did a five year survey and determined water usage among the well owners throughout the Mojave Basin. People were given a water allotment based on their prior use. Those who got water rights continued to farm and the Mojave Water Agency ramped down on the allotment each well owner had been given to reach what is regarded as a safe yield, so that what is extract is replaced by mother nature. In my case, I waited until after the adjudication to buy my land. Once you have property rights and water rights and you have bought them fair and square, it is ridiculous that someone wants to take them away from you.”
By Mark Gutglueck