IWVGA threatens to push local ag out of business

Guest Op ed

In an effort to collect an unprecedentedly high groundwater replenishment fee, the Indian Wells Valley Groundwater Authority (IWVGA) has sued Mojave Pistachios, LLC, an action that effectively will put the nut grower out of business.”

“The Authority previously determined that private overlying agricultural landowners had no rights to native groundwater in the Indian Wells Valley,” said Scott Slater of Brownstein Hyatt Farber Schreck, LLP, counsel for Mojave. “Then it allocated all native groundwater to others.” Having deprived Mojave of their native groundwater, the IWVGA is now seeking to force Mojave to either pay $10 million to bring other water to the Basin or turn off the water to approximately 220,000 trees. “The IWVGA’s animus towards agriculture is clear: They want these California farmers out. SGMA was never intended to make the IWVGA, judge, jury and executioner and this case represents a shocking abuse of power.”

“To use the SGMA process to target farmers with economically impossible fees threatens the larger implementation of SGMA itself. This reckless and punitive assault on farmers under the guise of SGMA’s mandates will dangerously erode confidence in the state’s implementation of SGMA among farmers in other basins. That poses a real threat of increased conflict rather than the collaborative management approach that was explicitly woven into SGMA,” said Dave Puglia, Western Growers President and CEO.

The Authority wants Mojave to pay a $2,130/acre foot “Replenishment Fee” for all groundwater pumped after January 1, 2021. All told, the amount of the Replenishment Fee and other fees and penalties sought by the complaint would exceed $10 million for 2021 alone.

Last month, California’s Department of Water Resources (DWR) approved the IWVGA’s Groundwater Sustainability Plan (GSP), despite the ag community’s opposition and insistence that it violates both the letter and spirit of the state’s Sustainability Groundwater Management Act (SGMA)

“This GSP is radically different from those proposed in the Southern San Joaquin Valley,” said Rod Stiefvater, owner of Mojave Pistachios. “The Plan sets a dangerous precedent that could extend into other basins across the state by setting water allocations based upon a GSA’s determination of water rights.”

“DWR failed to safeguard agriculture and the intent of SGMA when they approved the Authority’s Groundwater Sustainability Plan,” continued Stiefvater. “The Authority has been fiscally irresponsible and has misrepresented many facts and conditions to the residents of the Indian Wells Valley. We intend to fight this lawsuit and we now believe we have standing to pursue our existing litigation against the authority and secure our water rights.”

The Fourth District Court of Appeals denied Mojave’s initial request for an extraordinary writ enjoining the IWVGA from the Replenishment Fee but made it clear they will be watching and prepared to involve itself further if the Authority takes legal action.

The Authority’s complaint also asks the court to levy an additional fee of 1 percent per month on the delinquent groundwater charges plus another 10 percent penalty on the total amount due. Finally, the Authority seeks civil penalties of up to $500 per acre foot extracted, and another penalty of $1000 plus $100 for every day the fee is not paid.

These fees and penalties would exceed $10 million for 2021 alone.

In 2020, the Authority adopted a GSP that gives all of the Indian Wells Valley Groundwater Basin’s average annual recharge to the United States Navy’s NAWS China Lake facility. The Authority then instituted the extraordinarily high new fees on all groundwater pumped by any groundwater user that was not awarded an annual pumping allocation.

No members of the agricultural community were granted an annual pumping allocation.

Mojave’s participated earnestly and cooperatively throughout the entire Groundwater Sustainability Agency formation and GSP adoption process but was then forced by the Authority to sue to protect their farm.

To read more, visit https://www.mojavepistachios.com.

Kelly Garman

Story First Published: 2022-02-18