Legislation now being contemplated in Sacramento carries with it the potential for complicating the effort to hash out water use arrangements at the extreme northwest corner of San Bernardino County.
AB 560, if passed by the legislature and signed into law by the governor, would impact water rights adjudication cases by requiring the courts conducting them to consult with the State Water Resources Control Board and the Department of Water Resources to determine whether or not the proposed judgement substantially impairs the area’s ability to achieve sustainable groundwater management.
The availability of water and the regulation with regard to obtaining and using it has grown to become a huge, indeed virtually existential issue in Indian Wells Valley, which stands at the confluence of San Bernardino, Inyo and Kern counties in the western Mojave Desert. The effort and implication of the effort at governmental regulation of the state’s water resources is as pronounced or more so there than anywhere else in California. In the face of a then-three-year running drought, California state officials in 2014 undertook efforts to head off the absolute depletion of the state’s regional water resources. 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, each aimed at decreasing 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, were considered.
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 set aside for the future purchase of imported water and to 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 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. In this way, Indian Wells Valley Water District v. All Persons Who Claim a Right to Extract Groundwater in the Indian Wells Valley Groundwater Basin stands as a classic water rights adjudication effort, one intended to supersede earlier established adjudications. Under the legal process involved in the legal action brought by the Indian Wells Valley Water District, the region’s water users are to 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.
Searles Valley Minerals maintains that the water use regulation regime the Indian Wells Valley Groundwater Authority is seeking to create and enforce is a violation of California water law and the company’s long established water rights.
In September 2020, Searles Valley Minerals, represented by Eric Garner, Jeffrey Dunn and Maya Mouawad with the law firm of Best Best & Krieger, filed a lawsuit in Kern County Superior Court against the Indian Wells Valley Groundwater Authority in an effort to protect what Garner, Dunn and Mouwad asserted are the company’s groundwater rights within the Indian Wells Valley Groundwater Basin, and to stop the collection of what they characterized as an illegal and unfair groundwater replenishment fee and a tax disguised, they assert, as an “extraction fee.”
Searles Valley Minerals uses solution mining, which involves soaking portions of the company’s dry 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.
The groundwater replenishment fee, according to Garner, Dunn and Mouawad, 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, and thereby threatening the livelihood of the company’s 700 employees. The groundwater replenishment fee ignores and violates Searles Valley Minerals’ adjudicated water rights, according to the lawsuit.
Searles Valley Minerals’ 90-year-old water rights are the most senior in the Indian Wells Valley Groundwater Basin.
Garner, Dunn and Mouawad take issue with the fashion in which the China Lake Naval Air Station is not subject to the restrictions in the plan nor its fees and that Searles Valley Minerals’ long extant water use patterns, including the company’s provision of water to the town of Trona and its residents for domestic use is being given short shrift or ignored altogether in the current process being overseen by the Indian Wells Valley Groundwater Authority and the Indian Wells Valley Water District.
“Searles Valley Minerals’ right to pump water in the basin for domestic uses is senior to any water right reserved to [the] Weapons Station, and because [the] water district’s groundwater pumping began no earlier than 1955, its appropriative right, if any, to basin water remains junior to Searles Valley Minerals’ right,” according to the lawsuit. “The authority falsely asserts in its groundwater sustainability plan that any pumping allocations under the groundwater sustainability plan will be ‘consistent with existing groundwater rights and priorities.’”
The State Water Resources Control Board and Department of Water Resources, which under AB 560 would be able to make non-binding recommendations to adjust the terms of any newly-arrived-at or imposed water adjudication, have been respectful of historically established water rights in their application of authority in their rulings with regard to water use in the past.
From a certain perspective, including that of Searles Valley Minerals and Mojave Pistachios, the more numerous residents of southeastern Kern County, using their control of the Kern County, City of Ridgecrest and the Indian Wells Valley Water District entities within the rubric of the Indian Wells Valley Groundwater Authority, are politically outmuscling the less powerful entities that fall under the groundwater authority’s jurisdiction to take from them rights they have previously possessed. With the advent of AB 560, there is a possibility that Searles Valley Minerals and Mojave Pistachios could or would appeal to the State Water Resources Control Board and/or the Department of Water Resources to check the Indian Wells Valley Groundwater Authority from substantially reducing the water rights they have already established.
To a real extent, the management of the Indian Wells Valley Water District doubles as the management of the Indian Wells Valley Groundwater Authority, such that the goals of either or both are indistinguishable. At the June 12 Indian Wells Valley Water District board meeting, its members unanimously approved sending a letter to the California legislature opposing California Assembly Bill 560. According to the board members, AB 560 will throw a monkey wrench into the works of the groundwater authority’s adjudication effort and will transfer too much control and power over local water management issues to the state.
Among some, that concern is less than consistent with the reality of the legislation’s intent, which is to facilitate the principle upon which the Indian Wells Valley Groundwater Authority was created. AB 560 will require judges presiding over water adjudication cases to submit their rulings and final determination to the State Water Resources Control Boards and Department of Water Resources to certify them as “consistent with the Sustainable Groundwater Management Act.”
Nevertheless, neither the State Water Resources Control Boards nor the Department of Water Resources would have the authority to change the court’s ruling under AB 560, which states, “The court shall not be bound to enter judgment in a manner consistent with the advisory determination of the board.”
The legislative intent of Assembly Bill 560 is to encourage administrative and judicial efficiency, as judges hearing water rights adjudication cases are already subject to incorporating the substance and restrictions of the Sustainable Groundwater Management Act in their determinations. Having the State Water Resources Control Boards and Department of Water Resources review those rulings is meant to provide added assurance the courts will take the Sustainable Groundwater Management Act’s provisions into consideration before rendering a ruling or order that is then challenged at the appellate level, resulting in drawn-out delays in putting water conservation measures into place.
Indian Wells Valley Water District officials, however, said they yet believe that Assembly Bill 560 gives state officials additional leverage to engage in “meddling” with local authority over groundwater resources.
-Mark Gutglueck