First reading of pumping fee passes

Amidst public concerns, Gleason says there’s ‘no logic’ to fee opposition

First reading of pumping fee passesDerek Hoffman, legal counsel for Meadowbrook Dairy, questions the IWV Groundwater Authority’s right to impose a fee without voter approval. — Photo by Laura Austin

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By BRIAN COSNER, News Review Staff Writer

The Indian Wells Valley Groundwater Authority passed the first reading of its planned $30-per-acre-foot groundwater pumping fee last week. The Authority split the difference between proposed $35 and $25 fees in a 4-0 vote, Ridgecrest’s representative Mayor Peggy Breeden abstaining.

Public comment during the meeting was a culmination of months’ worth of concerns about the fee’s justification – lack of financial transparency in the form of a finance committee, incomplete data on private wells, substandard public outreach and the unfairness of what many have called an unfunded state mandate.

The IWVGA is a Groundwater Sustainability Agency formed as a result of the 2014 Sustainable Groundwater Management Act. The Authority and its member agencies – Kern County, Ridgecrest, IWV Water District, Inyo County and San Bernardino County – are on track to rack up more than $5 million in developing a Groundwater Sustainability Plan by 2020.

IWV Water District Director Ron Kicinski recently reported after attending a GSA summit that of the other California GSAs he observed, the most they spent on administrative costs up through GSP development was $2.5 million, and that the highest pumping fee he came accross was $6 per acre-foot.

A large portion of that cost is covered by state grants, but the proposed fee’s purpose is to cover about $1 million in gap funding between now and the plan’s implementation.

Authority representative Mick Gleason, Kern County 1st District supervisor, presented the news on Tuesday to the Kern County Board of Supervisors where he said the item had been approved, but not without issue.

“There are forces up there who are opposed to this pumping fee. They’re opposed to SGMA,” he said. “There’s really no logic in their opposition other than a steadfast belief in themselves, and they don’t recognize the state’s authority to impose regulation on the use of water. And they obviously don’t understand the dilemma that the Indian Wells Valley is faced with.”

While several members of the public representing agricultural interests, well owners, real estate or just typical residential water users have been critical of the Authority’s methods, most of them acknowledge the necessity of moving forward with some sort of plan and paying a fair fee. Commenters also frequently uphold SGMA’s emphasis on local control and stakeholder input.

Recently legal counsel for Meadowbrook Dairy has challenged the fee – something they say is no different than a tax without voter approval in accordance with California propositions.

“We’re not opposed to paying a fair and reasonable fee,” said Meadowbrook Attorney Derek Hoffman. “But the Authority’s cash flow issues don’t excuse it from complying with California’s constitutional requirements. The Groundwater Authority, not the pumpers or the public, has the burden of proving compliance with Proposition 26.”

Proposition 26, which was passed in 2010, requires a two-thirds vote of the state legislature to approve fees, levies and taxes. In addition, Proposition 218 makes all local government taxes subject to voter approval.

“Staff of the Groundwater Authority recommended 20 months ago that a fee consultant be hired to make a fee study in compliance with Proposition 26. Instead the authority has failed to analyze or even address it,” said Hoffman.

Whether or not the board has given adequate attention to concerns voiced during public comment has been a frequent topic of discussion at groundwater meetings. Water Resources Manager Steve Johnson, president of Stetson Engineers, commented at an earlier meeting that while the board does not always directly respond during meetings, members discuss public input during closed session.

But, Hoffman argued, that was “not a way to garner public trust.”

He added that his firm is submitting a Public Records Act request for communication records among IWVGA members and staff pertaining to several topics including the proposed fee, projected budgets and groundwater production reports.

County Legal Counsel Phil Hall responded to some of Hoffman’s comments and asserted that voter-approved tax legislation was superseded by California Water Code 10730, the section of SGMA that authorizes GSAs to impose fees.

“The legislature knows what it’s doing when it passes a law,” said Hall. “Prop 218 and 26 were in effect prior to 10730 being passed. It’s the legislature’s wisdom that 10730 is not subject to either proposition.”

He also said that it was because of an alleged threat by Hoffman to sue the Authority that the board needed to discuss things in closed session.

Gleason responded that he never recalled such a threat, and Hoffman later clarified that his firm never threatened litigation.

Hoffman, along with many others, also said the board needed to be definitive about the definition of “de minimis” groundwater users, exempt from paying groundwater fees.

At its most basic definition, a de minimis groundwater pumper is a typical household using a single well for domestic purposes that pumps less than two acre feet of water annually. An acre foot is roughly 325,000 gallons, and the average residence in the city pumps less than an acre foot annually

Questions about whether multiple residences using one well, multiple wells or other well-sharing arrangements have rarely been met with definitive answers by the board. Earlier this month, staff reported that as many as four residences using the same well could be considered de minimis. However, the most recent definition from the IWVGA states that only one household on a well would be considered de minimis.

During public comment, Elaine Mead, a valley resident and former well owner, added that property with more than half an acre of grass, trees, shrubs or other plants would no longer be considered de minimis regardless of pumping volume.

County Legal Counsel Phil Hall disagreed with Mead, saying he’d never heard of that condition. But Mead had the SGMA emergency regulations fact sheet on hand supporting her input. Hall added that it was probably a moot point since anybody watering more than half an acre would be likely to use more than two acre feet of water in a year anyway.

Many well owners have been reassured that they would be de minimis users, but the continued uncertainty of the definition did little to ease concerns.

Well Owner Myron King asked if the people who were confident they were de minimis users could just “go home and forget about the whole thing.” San Bernardino County Representative Bob Page said it was possible that with more well data, de minimis users might have a collective impact that would need to be addressed

Incomplete pumping data has been another point of contention. As the potential fees have come closer to a reality, critics argue that the board needs to more thoroughly notify the public about well registration and gather more data on private pumping before moving forward with any fees.

As many as 1,800 private wells are reported to exist in the Indian Wells Valley. Prior to the Authority’s last scheduled informational meeting, the board sent out fewer than 500 notices to known well owners.

“You really need to send a notice to every APN to do this properly,” said Judy Decker during public comment.

City Attorney Lloyd Pilchin, who is also legal counsel to the IWVGA, specified that last week’s meeting was only the first reading of the ordinance. The board is required to address the item again during its July 19 meeting. If approved, the fee would go into effect no less than 30 days after the vote.

The Authority has scheduled a public informational meeting for the evening of Tuesday, July 10, 6 p.m. at City Hall. For more information about the IWVGA, visit iwvga.org.

Story First Published: 2018-06-29