Searles atty. rebuffs proposed limitations

Searles atty. rebuffs proposed limitationsBy BRIAN COSNER

News Review Staff Writer

The Indian Wells Valley Groundwater Authority heard from an attorney for Searles Valley Minerals last week during the public comment portion of the GA’s October meeting. The authority recently proposed groundwater pumping limitations which would restrict the company to using an “augmented” water supply – presumably imported water.

Advocates for Searles – Trona’s largest employer which also provides jobs for hundreds in Ridgecrest – claim that the plant has pumped groundwater since before the Navy took root in the IWV and needs to be considered when water allocations are determined.

“I need to be clear to you all here,” said Tom Bunn, Searles’ attorney. “Searles cannot survive with a ‘zero’ allocation. It will shut down.”

The proposal says that the Navy’s federal reserve water right is “superior to all other water rights in the basin, with the exception of those rights that were in existence at the time the base was founded.”

“As you know, Searles claims such a preexisting right, which, as far as I know is undisputed,” said Bunn.

The proposal goes on to say that the authority has no way to “conclusively determine the merits of that dispute” due to the Navy’s sovereign immunity as a federal agency.

But Bunn says sovereign immunity means only that the Navy can’t be sued except under certain circumstances.

“It doesn’t prevent you from allocating water and authority with your analysis of water rights law,” he said.

According to the proposal, Searles reported current pumping at about 2,700 acre-feet annually.

Bunn said its historic pumping rate is about half that. His suggestion was that the authority grant Searles an allocation for its pre-Navy pumping.

“If you changed nothing else on that chart, it would mean the water district would require a somewhat larger amount of the so-called ‘augmentation supply,’ and Searles would require somewhat less,” said Bunn.

“But it would allow Searles to survive and it would be consistent with your duty to allocate water in accordance with water rights.”

Imported water has been the only source of an augmented water supply discussed by the authority. But the costs, and availability, of that source are still in question.

“Looking ahead, I’m hearing that there might be significant legal exposure,” said Joshua Nugent during public comment. He asked if the authority has a “large pool of money set aside” to address potential litigation as the agency moves forward with a Groundwater Sustainability Plan.

Kern County 1st District Supervisor and Authority Boardmember Mick Gleason said that the potential for litigation is “very real” and that the authority would need to be prepared.

“We are developing an outline of a GSP that’s going to include capabilities for us to generate revenues to offset those costs and offset future administrative costs, remediation costs and litigation costs we’re going to be looking at down the road,” said Gleason.

The authority is currently short more than $1 million in revenue to cover expenses related to developing the Groundwater Sustainability Plan, which is due by the end of January 2020.

These expenses don’t include the execution of the plan or the other costs Gleason mentioned.

Plans the board discussed to generate revenue include increasing the groundwater pumping fee from $30 per acre-foot to $40 or $60 per acre-foot, options that are being reviewed by staff.

Story First Published: 2019-10-25