GA fee uproar continues

Questions remain about replenishment fee’s legality

GA fee uproar continuesBy BRIAN COSNER

News Review Staff Writer

After a failed Proposition 218 protest hearing last week, the Indian Wells Valley Groundwater Authority voted 4-1 to approve a $2,130-per-acre-foot groundwater replenishment fee which will hit IWV Water District ratepayers, Searles Valley Minerals and agricultural users willing to continue operations.

The controversial fee approval came on the heals of a vote to increase the valley-wide groundwater extraction fee from $30-per-acre-foot to $105. Residents have noted that this marks a more than 7,000-percent increase to GA fees since the original extraction fee passed in 2018.

It is unclear how the new fee will be distributed among Water District customers, but Searles made it clear that the company will likely be unable to continue operations with adding more than $6 million to its water costs.

Locals immediately began gathering signatures for a referendum in hopes that it will either force the GA to revisit the decision or subject the fee to a vote by the people.

“This warrants a real vote, not a Prop 218 protest,” said Mayor Pro Tem Lindsey Stephens, who was gathering signatures over the weekend.

While the protest hearing garnered some 5,000-plus letters of opposition, Prop 218 requires 50-percent-plus-one of the affected users to oppose a new tax. All nonresponses are considered votes of approval. At press time, the GA reported that the official tally was still pending, but was “no more than 5,237, likely less.”

According to Stephens, the referendum needs some 2,000 signatures to be considered. Any resident who owns property connected to the IWV Water District is eligible to sign and signatures are still being collected at Cordell Construction on China Lake Boulevard.

Representatives of Searles Valley Minerals, the single entity that will be most significantly impacted by the fee, objected to the fact that Trona residents were not considered for the protest, despite Trona being home to some of the companies 700 employees.

Legal counsel from local agricultural outfits Meadowbrook Dairy and Mojave Pistachio have also strongly objected to the fee and, with SVM, have entered into litigation tolling agreements with the GA. Many have raised concerns that the money raised by this fee might just become a “war chest” for the GA to fund litigation

Kern County 1st District Supervisor and GA Chair Mick Gleason has been the primary proponent for the replenishment fee – which he said would be crucial to the IWV getting it’s foot in the door of California water politics.

The replenishment fee’s purpose is to fund a $50 million purchase to an annual right of some 5,000-8,000 acre-feet of groundwater with the State Water Project. This water would be allocated to the Water District and Searles to make up for the difference in pumping compared to the basin’s annual recharge of 7,650 acre-feet according to the GA. Leftover water would be available for anybody willing to pay for it, whether it is local agricultural interests or other California basins.

But the fee doesn’t take into consideration the hundreds of millions of dollars more it will take to actually get the water to the IWV. Nor does the GA currently have an approved plan to do so. Any potential arrangement with the Antelope Valley-East Kern Water Agency or, less likely, the Los Angeles Department of Water and Power would have its own “massive issues” by Gleason’s own admission.

A question also remains regarding whether or not the fee adheres to the Prop 218 process as one of the stipulations is that voters must be made aware what the exact fee is going to be for them. Because the fee is based on the volume of water pumped, it will vary from month-to-month and user-to-user.

According to Proposition 218, the property-related service pertaining to the fee must also be made immediately available. But by the GA’s own estimates, imported water won’t be available for several years.

Additionally, while GA literature pointed out that “de minimis” users (non-commercial pumpers who use less than two acre-feet annually) would not be subjected to the replenishment fee, it did not state that by not responding they are effectively voting for the fee’s approval.

The unknown costs and feasibility of transporting water to the valley have been the primary concerns expressed by the above agencies, as well as the IWV Economic Development Corporation, Ridgecrest Area Association of Realtors, IWV Water District, Coso Geothermal and thousands of IWV residents.

Water District Director and GA representative Ron Kicinski was the only voice of opposition to the fee on the GA Board. He asked that the GA delay the decision for long enough to determine the more accurate costs for water replenishment.

Kicinski said a defined importation project, not just acquiring rights to the groundwater, is a must and that the fee’s lack of an end date raises some concerns.

“I’ve heard this called ‘death by 1,000 cuts,’” said Kicinski, referring to not only the replenishment fee, but to the administration, operation, maintenance, infrastructure and capital project fees that will inevitably follow.

Kicinski said by the GA should take a few months to present at least two importation projects with “bottom-line costs” to the public.

He said that most of the people who protested the fee still tend to agree that the GA needs to do something to augment the water supply. “They just want all of that information in front of them so they can plan their lives.”

“In order to gain not just the support of the community, but the trust, this board has an obligation to present a clear picture of all the costs the community will be expected to pay,” he said. “That is – how much will their water bill increase, and when? Without that trust, there will be no support.”

The city’s GA rep Councilmember Dr. Scott Hayman ultimately made the motion to approve the fee during last Friday’s meeting, despite receiving guidance from the majority of the Ridgecrest City Council to delay the fee’s approval.

“I think the numbers are equally as high, or more, of people who support [the fee],” said Hayman after hearing from numerous councilmembers and residents about their dissatisfaction with the fee.

As GA Board representatives are not elected to the GA itself, but to their respective agencies, members have been expected to bring their respective board’s and constituents’ input to the table when voting. This has been a contentious topic of discussion during the GA’s formation in 2014.

While the GA bylaws make no explicit reference to a requirement for a representative to carry out his or her board’s orders – the public was given assurance that representatives would be accountable to their respective agencies.

During any controversial matter, the GA representative is expected to return to his or her board and say “I’ve got this choice to make – what do you think I should do?” said the city’s legal counsel Wayne Lemieux at a 2016 meeting. “If the GA representative from the city doesn’t express the council’s policy – then there will be a new GA representative from the city.”

But counsel for both the city and the county have done an about face in recent years, expressing that it would violate the purpose of the GA for member agencies to dictate policy to their representatives.

City Attorney Lloyd Pilchen said at the most recent City Council meeting that council’s only authority is to provide “guidance” to its GA representative.

“It does not mean a vote to give clear direction to Dr. Hayman,” said Pilchen. “Guidance means anyone on the dais can express their views which become input for Dr. Hayman.”

Stephens said if that was the policy moving forward, than the city should “step down from the GA."

Another concern voiced by the public is that the GA is moving forward with plans for importation without exploring and surveying more of the basin. Currently, some 60 percent of the basin remains unexplored with the majority of all pumping taking place in the same concentrated areas.

Steve Johnson of Stetson Engineers – the GA’s Water Resource Management firm – has repeatedly referenced the need to address “data gaps” in the IWV basin. But any talk of further exploration and study has been relegated to the back burner as the GA has focused its efforts, and some $7 million, to submit a Groundwater Sustainability Plan to the state.

“The more information, the better off we’re going to be,” said Kicinski. “We have the public engaged. But if we don’t take the time to present what they are asking for, they will be against us.”

The IWV Groundwater Authority meets the third Thursday of the month at City Hall. Meetings are currently closed to the public, but are streamed online through the city’s YouTube Channel. For agendas and information on how to participate remotely, visit iwvga.org/ivwga-meetings.

Pictured: Protesters outside of City Hall are prohibited entrance to the public hearing on the IWVGA Replenishment Fee. — Photo by Laura Austin

Story First Published: 2020-08-28