A tri-county collection of government officials last month hailed the California Department of Water Resources’ acceptance of a groundwater sustainability plan in the Indian Wells Valley, a development that entities within that region’s private sector decried as one which will likely drive them out of business.
Indian Wells Valley lies at the extreme northwestern end of the Mojave Desert and the confluence of the northwestern corner of San Bernardino County, the southeastern end of Kern County and the southwestern extension of Inyo County.
In the face of a four-year running drought, California state officials in 2014 undertook efforts to head off the absolute depletion of the state’s regional water sources. In September 2014, then-California Governor Jerry Brown signed into law the Sustainable Groundwater Management Act, which requires local agencies to draft plans to bring groundwater aquifers into balanced levels of pumping and recharge. That was followed in 2015 by Brown mandating water-saving measures throughout the state.
In response, pursuant to a joint exercise of powers agreement, the Indian Wells Valley Groundwater Authority was formed with Kern County, San Bernardino County, Inyo County, the City of Ridgecrest and the Indian Wells Valley Water District as general members and the United States Navy and the United States Department of the Interior Bureau of Land Management as associate members, with each general member having one voting seat on the authority board and the federal associate members participating in all board discussions, but not having a vote.
The joint powers authority took as its mandate counteracting the overdraft of the aquifer underlying Indian Wells Valley.
Based upon a survey of water usage patterns undertaken by an engineering consultant, Carlsbad-based Stetson Engineers, the authority and the Indian Wells Valley Water District sought to derive a strategy for both reducing water use in the valley and increasing groundwater recharge to reach a balance of both that will end the overdraft. Several different plans, or models, were contemplated. Basically, the concept was to decrease the drafting of water from the regional aquifer through conservation, increased recycling of water and perhaps the minimization of evaporation, augmented by the importation of water from outside the valley to achieve, no later than 2040, a balance of water coming in with the amount of water usage, such that the depletion of the aquifer will end.
Stetson Engineers was designated the water resources manager for Indian Wells Valley, and the authority’s board in January 2020 passed a tentative proposed groundwater sustainability plan and voted to submit it to the state. Thereafter it made adjustments to the plan, which contained water use limitation elements and water replenishment measures. The plan incorporated a farmland fallowing option as well as an increase in the monthly assessment or fee that was imposed on the extraction of water by major pumpers. That fee had been previously collected to cover the costs associated with the administrative activity of the groundwater authority.
After a survey of water use by well owners both collectively and individually was made, the authority assigned water use allowances to the region’s well owners. Excess use fees, referred to as augmentation fees, were formulated for application to those well owners who pump above their allowances as well as on any farmer whose use exceeds his respective share of the water supply set aside for agricultural usage. Money generated in this way is used to purchase imported water and pay for the eventual provision of infrastructure needed to bring in the imported water.
Even before the California Department of Water Resources had fully examined the proposed groundwater sustainability plan for the Indian Wells Valley, a number of farms and operations in the region raised protests over the limitations being imposed on them. Among those were Searles Valley Minerals, Mojave Pistachios and Sierra Shadows Ranch, along with John Thomas Conaway and the Nugent Family Trust. Ultimately, those four entities sued the groundwater authority and the Indian Wells Valley Water District as the lead agency in that joint authority, claiming the conservation efforts being undertaken imposed not only an unacceptable financial burden on them but were abrogating their long-established water use rights altogether. The legal actions have created paradoxes, as some private sector entities which are allies in their lawsuits against the district and the authority have also filed separate actions against one another.
Meanwhile, the Indian Wells Valley Groundwater Authority and the Indian Wells Valley Water District pushed ahead with the effort to refine the groundwater sustainability plan and garner state authorization to apply it.
Growing out of the litigation brought by Searles Valley Minerals, Mojave Pistachios and Sierra Shadows Ranch, along with John Thomas Conaway and the Nugent Family Trust was a cross complaint from the Indian Wells Valley Water District in the form of Indian Wells Valley Water District v. All Persons Who Claim a Right to Extract Groundwater in the Indian Wells Valley Groundwater Basin. Essentially, that suit calls for a survey of water usage among all water users and purveyors in the region, data from which will ultimately form the basis of water use allotments being apportioned to those users. Those users will be afforded the opportunity to object to or provide input regarding those allotments, which will ultimately be determined by an Orange County Superior Court judge.
The disputes over water in the Indian Wells Valley Region have been assigned to the Orange County Superior Court to avoid bias that might manifest if the hearings were held in a court in Kern, Inyo or San Bernardino counties.
Last month, the California Department of Water Resources released its findings and written assessments for dozens of water sustainability plans submitted for review from various groundwater authorities and collectives from around the state, the one for the Indian Wells Valley among them.
What is today known as Searles Valley Minerals has been in existence since 1873, when John Wemple Searles, a gold and silver miner who had arrived in the area in the 1860s, founded the San Bernardino Boarx Mining Company to extract borax, a white crystalline powder from the dry Searles Lakebed near present day Trona. Initially long mule teams were used to haul borax in wagons to San Pedro, which was thereafter shipped by train when the Southern Pacific Railroad reached the western Mojave in 1876. The company passed into the possession of Francis Smith, who shuttered the operation in 1896. Subsequently, in 1913, British investors revived the mining operation at Searles Lake, and in 1914, the American Trona Corporation established the company-owned town of Trona. at which point the Trona Railway was constructed, connecting the town with what was then the Southern Pacific line at Searles. The America Trona Corporation proved highly profitable during World War I, when Trona was the only reliable American source of potash, an important element used in the production of gunpowder. By the 1930s, the town’s population peaked at around 7,000, making it what was at the time the ninth largest community in the county. Workers at the company plant were paid in company scrip, which was every bit as negotiable in Trona’s commercial establishments of the time as greenbacks. Talk of incorporating Trona as a city was kiboshed, since it was not in the American Trona Corporation’s interest to surrender control over the townsite. The American Trona Corporation gave way to the American Potash & Chemical Corporation in 1926, at which time its major products were borax, soda ash and sodium sulfate. Productions of these chemicals continued to expand throughout the 20th Century and the company experienced a resurgence during World War II.
In 1962 the company received nationwide recognition and an award for its innovative solvent extraction process to recover boric acid and potassium sulfate from weak brines.
In 1967, Kerr-McGee Corporation (now a subsidiary of Anadarko Petroleum Corporation) acquired American Potash and Chemical Corporation and it operated the Searles Valley facilities until 1990. That year the operations were purchased from capital investors D. George Harris and Associates, resulting in the formation of the North American Chemical Company. Ownership changed yet again in 1998 when IMC Global Incorporation acquired the North American Chemical Company.
In 2004 Sun Capital Partners purchased IMC Global Incorporation and renamed it Searles Valley Minerals, Inc. In November 2007, Nirma, based in Ahmedabad, India purchased the company from Sun Capital Partners.
The current population of Trona stands at around 1,950.
Searles Valley Minerals uses solution mining, which involves soaking portions of Searles Lake in San Bernardino County with water to precipitate brine which is then extracted and processed to produce boric acid, sodium carbonate, sodium sulfate, several specialty forms of borax, and salt.
Searles Valley Minerals is represented by Eric Garner, Jeffrey Dunn and Maya Mouawad with the law firm of Best Best & Krieger. The groundwater replenishment fee, Garner, Dunn and Mouawad maintain, is unprecedented and exorbitant, and will increase the company’s water costs by 7,000 percent or $6 million per year – pushing Searles Valley Minerals out of business after more than 140 years of operation, thereby threatening the livelihood of the company’s 700 employees. The groundwater replenishment fee ignores and violates Searles Valley Minerals’ 94-year-old adjudicated water rights, the most senior in the Indian Wells Valley Groundwater Basin, according to the lawsuit brought on behalf of the company by Garner, Dunn and Mouawad.
As the successor to the America Trona Corporation, Searles Valley Minerals continues to supply domestic water to the town of Trona.
According to Searles Valley Minerals, “The groundwater sustainability plan submitted for the Indian Wells Valley Groundwater Basin clearly violates a key tenet of the Sustainable Groundwater Management Act, which prohibits a groundwater management agency from determining water rights.” According to Searles Valley Minerals, approval of the plan was given “despite the California Department of Water Resources acknowledging that implementation of the ground water sustainability plan means agricultural water use would be eliminated, and groundwater use would predominantly be for municipal and domestic uses and the U.S. Navy.”
Searles Valley Minerals maintains it is “impossible” for the California Department of Water Resources to assess the feasibility of the authority’s eventual water importation project due to “uncertainty regarding financing and other project elements. This outrageous fee could ultimately lead to the closure of Searles Valley Minerals, triggering significant job loss in an area that is already described by the federal government as economically disadvantaged.”
According to Burnell Blanchard, the vice president of operations for Searles Valley Minerals, “It is illogical that the Department of Water Resources would approve a deficient groundwater sustainability plan that will not end the over-drafting of the Indian Wells Valley Groundwater Basin. The plan underestimates the basin yield and ignores historic water rights, including those of Searles Valley Minerals, which are the oldest in the basin. The Department of Water Resources itself acknowledged the plan’s serious deficiencies, and expressed doubts regarding the water import projects identified in the groundwater sustainability plan, and that even a full implementation won’t be enough to bring the basin into balance within the Sustainable Groundwater Management Act statutory period. Searles Valley Minerals cannot afford the water replenishment fee that accompanies this plan and is at risk of closing its doors and eliminating hundreds of local jobs. Hundreds of residential households in the town of Trona and surrounding communities will also lose access to affordable drinking if Searles Valley Minerals is deprived of its water rights.”
According to Searles Valley Minerals, it, rather than the Indian Wells Valley Water District is the driving force toward a comprehensive adjudication of groundwater rights in the Indian Wells Valley Groundwater Basin, as it intends to protect its “historic, prior and paramount groundwater rights, which are necessary for its continued business operations and the continued provision of domestic water to the Trona communities.”
One issue complicating the matter is that both the Bureau of Land Management and the China Lake Naval Air Weapons Station, as federal entities, are exempt from the groundwater sustainability plan and the Sustainable Groundwater Management Act, and therefore not subject to the restrictions that will be imposed in the groundwater sustainability plan. The China Lake Naval Air Weapons Station encompasses two ranges and totals over 1,100,000 acres or 1,719 square miles, much of that within Indian Wells Valley. While the China Lake Naval Air Weapons Station has made strides in recent years in reducing its water use, it still drafts some 1,600 acre-feet of water from the aquifer annually.
Don Zbeda is now the general manager of the Indian Wells Valley Water District. From 1990 until 2012 he was employed by Searles Valley Minerals’ corporate predecessors, the North American Chemical Company and IMC Global Incorporation, and then, after Sun Capital Partners’ purchase of IMC Global Incorporation, Searles Valley Minerals. According to Zbeda, the Indian Wells Valley Water District and the Indian Wells Valley Groundwater Authority are merely complying with the State of California’s mandates in seeking to implement the groundwater sustainability plan.
“The landmark Sustainable Groundwater Management Act of 2014 requires local groundwater sustainability agencies to be formed for all high and medium priority basins in the state,” Zbeda said. “These groundwater sustainability agencies must develop and implement groundwater sustainability plans for managing and using groundwater without causing undesirable results. High priority, critical condition basins, including the Indian Wells Valley Basin, must achieve groundwater sustainability by January 31, 2040. All other high and medium priority basins must achieve groundwater sustainability by January 31, 2042. The groundwater sustainability plan for the Indian Wells Valley Basin was submitted on behalf of the Indian Wells Valley Groundwater Authority January 31, 2020, The Department of Water Resources committed to completing their review within two years.”
Zbeda continued, “The water conservation legislation of 2018, Senate Bill 606 and Assembly Bill 1668, established a new foundation for long-term improvements in urban water supplier conservation and drought planning. The legislation applies to urban retail water suppliers but does not set any standards or rules for individual customer water use. The legislation requires the Department of Water Resources, in coordination with the water board, to perform the necessary studies and investigations to set both indoor and outdoor residential water use standards as well as standards for commercial, institutional, and industrial customers. Though yet to be finalized, targets for indoor residential use per current statute are 55 gallons per person per day in 2020, 52.5 gallons per person per day in 2025, and 50 gallons per person per day in 2030. Legislation also provides for appropriate variances for unique uses that have a significant effect on water use. A variance for use in evaporative coolers is one under consideration. These standards, variances, and methodologies will become effective after June 2022, following the water board’s adoption of recommendations following a lengthy public process during 2021.”
“As for litigation, there are multiple lawsuits filed with the court,” Zbeda said. “Mojave Pistachios and Searles Valley Minerals have filed separate but similar lawsuits referred to as reverse validation actions against the authority challenging the groundwater sustainability plan and related implementation actions, including the replenishment fee. These lawsuits are currently pending in Orange County. The water District is a party to the reverse validation actions. In addition to the two reverse validation actions, Mojave Pistachios filed a complaint against the water district, Searles Valley Minerals, and Meadowbrook Dairy requesting a ‘limited physical solution’ between only these four major water producers. The Navy was not named in the lawsuit.”
Zbeda said, “Most recently, the water district’s board of directors voted to file a comprehensive adjudication that does include Navy participation and allows all those who may claim a right to pump or store water in the basin to participate, assert and prove any rights they may claim. A case management conference has been set by the court for March 15, 2022.”
-Mark Gutglueck