A Groundwater Authority is bankrupting farmers while the courts and State idly watch

Lacking transparency and mired in financial mismanagement, the Indian Wells Valley Groundwater Authority continues to abuse the Sustainable Groundwater Management Act (SGMA).

For almost a decade, the Authority has been hiding behind a “confidentiality agreement” with the United States Navy to deny the public documents that support its Groundwater Sustainable Plan (GSP). The Authority has refused to open their books or produce solid data. It has misused public funds, not listened to reliable counsel, and ultimately and intentionally has used SGMA to pick winners and losers in the Valley.

The Authority has not hidden however, their intention of pushing agriculture out of the Valley. By imposing an absurd replenishment fee of $2,130 per acre foot, their intent is obviously to bankrupt existing agricultural operations. It is a taking of private property via exorbitant fees that cannot be absorbed in business operations.

The Authority’s list of “wrongdoing” has now expanded further, as it has become evident that the modeling used for their Groundwater Sustainability Plan (GSP) is not an accurate assessment of the basin’s sustainability.

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Touting a sustainable yield of 7,650 acre-feet per year, in 2021 the Authority’s GSP allocated ZERO native groundwater to Mojave Pistachios and very little to other farmers.

The Authority then implemented the outrageous “replenishment” fee of $2,130/acre-foot to keep Mojave’s 1,600 acres of trees alive and bearing fruit.

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California’s Department of Water Resources signed off on this GSP that appears to be predicated on a faulty study of the basin, paid for by the Navy.

Missing from the Authority’s analysis was a fair consideration of the massive groundwater Basin and the total volume of freshwater that is in storage. With millions of acre-feet of freshwater that is readily available for recovery, the Authority’s plan to spend hundreds of millions of dollars to build a pipeline through the desert is revealed to be completely unnecessary. The new analysis reveals dramatically different findings than what the Authority published and that which it based the fee upon.

First, there is substantially more water in the basin than the Authority wants to

admit, more than 40M acre feet of water – twice the size of Lake Mead when its

full. That’s more than 13 trillion gallons. A stark contrast to the 1.75 million AF

estimated in the Authority’s GSP.

The new estimate was conducted by a group of experts from six professional hydrogeological science and engineering consulting firms. The firms were appointed by a consortium of municipal, agricultural, and industrial users who collectively accounted for more than 80% of the groundwater pumping during the 2022 Water year.

The analysis also estimates approximately 40 million acre-feet of potable groundwater remaining in storage within the Indian Wells Valley.

These new findings raise significant questions about the management of the Indian Wells Valley Groundwater Basin. The Authority’s pattern of behavior that suggests they are using poor science to advance an adversarial agenda against agriculture and private industry. Further, they sometimes analyzed only smaller portions of the valley and were limited by the technology available at the time.

The data used for their groundwater model is dated and its accuracy in doubt. And to date, they have refused to make their model available to the public or allow others to peer review its accuracy.

With Mojave Pistachios and other agricultural operations facing destruction in a matter of weeks for lack of water, DWR must immediately step and ask more exacting questions of the Authority and its’ reliance on an – as yet – undisclosed model in to revisit their approval of this haphazard GSP that is punishing agriculture and industry and demonstrating that SGMA can be manipulated and bent to the will of a 2-1 majority.

Landmark SGMA Court of Appeals Ruling with Dangerous Implications for Farmers, Businesses and Taxpayers

On February 8, 2024, the Court of Appeal in Orange County issued the State’s first published appellate opinion interpretating the Sustainable Groundwater Management Act (SGMA) and the powers of a Groundwater Sustainability Authority (GSA). The opinion prohibits a Kern County landowner’s legal challenge to a GSA’s groundwater allocations because the landowner didn’t pay $8.5+ million per year in pumping fees.

The GSA granted ZERO annual allocation of groundwater to the landowner’s established 1,600-acre farm. The GSA determined that Mojave Pistachios’ overlying rights were “inferior” to other pumpers’ water rights, contrary to the Legislature’s declaration that SGMA preserved overlying water rights and California law.

The GSA’s expressed intent was to eliminate agriculture from the Indian Wells Valley by providing Mojave Pistachios with no allocation of native groundwater and a very limited allocation to other farmers that would end their farming in a matter of years.

The Court held that several challenges including takings of private property rights—are barred under the “pay first litigate later” doctrine because the landowner did not pay the GSA’s massive replenishment fee of $2,130 per acre-foot of groundwater pumped since 2021, which today amounts to a cumulative fee of over $25 million.

Contrary to SGMA’s Legislative intent, the Court allowed the GSA to determine that

landowners have inferior water rights as a basis to set a replenishment fee, without due

process, because the “pay first litigate later” doctrine shields the GSA’s entire action.

Under the opinion, the landowner cannot challenge the GSA’s decisions to award them zero

allocation or to impose a replenishment fee so large it will put them out of business.

This opinion will have catastrophic consequences for all California water rights’ holders and for SGMA implementation. If the opinion stands, public agencies across the state can shelter all manner of illegal conduct, including prohibiting groundwater pumping, taking water rights without payment, and imposing multi-million-dollar, unaffordable fees.

This ruling goes beyond GSAs and SGMA. Under the ruling, public agencies could adopt a

punitive fee designed to bankrupt a certain subset of customers or force them to move or

abandon their home or business.

The Court of Appeal acknowledges that its opinion is of statewide importance and a question

of first impression, inviting review by the California Supreme Court.

The GSA has filed for an injunction to bar Mojave from continuing to pump water while the

matter is litigated. That will deprive their orchard of water needed to sustain the life of the

trees. The need for immediate California Supreme Court Review is urgent.

Groundwater Authority Says: ‘Show me Yours, but I Won’t Show you Mine’

I was struck by both the hubris and hypocrisy of the Indian Wells Valley Groundwater Authority’s recent public records request to the Indian Wells Valley Water District detailed in last week’s article titled “Groundwater Authority presses WD for new basin data.”

For over half a decade, the Groundwater Authority has been hiding behind a “confidentiality agreement” with the United States Navy to deny the public requests for access to its self-proclaimed prodigious groundwater model. It has also violated the Public Records Act by refusing to provide water users with documents to support its actions, including its adoption of the highest “replenishment” fee in California. Only now, when the Groundwater Authority is on the cusp of suffering the ultimate indignity of having to acknowledge its dire assessment of groundwater resources in the Indian Wells Valley, the Groundwater Sustainability Plan, and the model it relies upon are a complete sham, does it suddenly have an interest in the public’s right to access and transparency.  

In point of fact, the Groundwater Authority has no interest in transparency of any kind. It lives in a fantasy world in which it spends millions in State grants and its water users’ monies wildly in pursuit of consultants to contract for water supplies that are not financeable, on engineering work for a pipeline that will never be built, and on legal fees defending its actions. None of which would be necessary if it had simply provided public access to the model and data input that we know are skewed.

The Groundwater Authority’s day of reckoning is coming. As the Groundwater Authority is pursuing a 2025 update to its preposterous Groundwater Sustainability Plan, and facing litigation over that plan, the agency is undoubtedly anxious to know what the Water District knows about the real sustainability of the basin. That truth will not be convenient for the Groundwater Authority. Its hypocrisy of demanding transparency for others but not itself is now on peak display.

Rod Stiefvater, Mojave Pistachios