The Indian Wells Valley groundwater plan got a thumbs up from the state on Thursday but with a swarm of lawsuits surrounding the plan, it’s unclear what that approval will mean going forward.
One of those lawsuits seeks a “comprehensive adjudication” of water rights of the Indian Wells Valley basin, which could reconfigure who has rights to how much groundwater, a fundamental underpinning of the groundwater sustainability plan that was just approved.
“We don’t really know what the impact of (the Department of Water Resources’) approval will have on the court, it remains to be seen,” said Don Zdeba, general manager of the Indian Wells Valley Water District, which filed the adjudication.
Other lawsuits attack one of the plan’s key features – and also its most controversial – a $2,130 – per-acre-foot “replenishment fee” charged over five years to certain groundwater pumpers.
That replenishment fee is anticipated to raise $50 million that the Indian Wells Valley Groundwater Authority will use to buy water from elsewhere in California and bring to the desert community. How the authority will pay for the infrastructure needed to move that water hasn’t yet been laid out.
DWR, on Thursday, made several recommendations to the authority’s groundwater plan, but didn’t address the replenishment fee nor the plan’s strict groundwater allocations. Those allocations would take agriculture from its current 62% of the area’s total groundwater use down to 0% by 2040, when the state’s Sustainable Groundwater Management Act is fully implemented.
Agricultural company Mojave Pistachios has two lawsuits pending against the authority, one over the fee and another seeking a “physical solution” to the area’s groundwater issues.
Another lawsuit was filed by Searles Valley Minerals, which pumps about 2,400 acre feet a year for its operations producing salt, soda ash and boron in Trona.
The replenishment fee would increase its water costs by 7,000%, as previously stated by Searles’ Operations Vice President Burnell Blanchard. Searles’ lawsuit also contends that since the company has been pumping out of the Indian Wells Valley since the 1930s, it has prescriptive rights to the groundwater.
“It is illogical that DWR would approve a deficient groundwater sustainability plan that will not end the over-drafting of the Indian Wells Valley Groundwater Basin,” Burnell wrote in a press release following DWR’s announced plan approval.
The plan also violates SGMA’s prohibition that groundwater agencies can’t determine water rights, the release states.
Mojave Pistachios had a similar reaction.
“We are surprised that DWR would approve a GSP that violates the letter and spirit of SGMA, particularly related to the unlawful determination of water rights, the elimination of agricultural water use, and assignment of an outrageous replenishment fee of $2,130 per acre foot,” wrote Joshua Nugent, with Mojave Pistachios, in an email. “This is an extremely dangerous precedent for farmers in California.”
The groundwater authority has recently filed actions against Searles and Mojave Pistachios for nonpayment of the replenishment fee.
Whatever the future holds for those lawsuits, DWR’s approval was welcomed by the authority.
“We are delighted to receive DWR’s approval letter, and we will be working with our staff to analyze and respond to the recommendations,” wrote authority General Manager Carol Thomas-Keefer in an email.
Meanwhile, though the Indian Wells Valley Water District filed for comprehensive adjudication in the basin, it isn’t necessarily opposed to the fee, which cost its customers about $4.1 million in 2021, Zbeda said.
The district filed the adjudication action in order to protect the basin’s water supply, according to an FAQ on the district’s website. It also wanted to protect its rights in case the replenishment fee was invalidated, Zdeba said. The first hearing on the adjudication is set for March 15 in Orange County.
This was DWR’s first official review of any Kern County groundwater sustainability plans, which were required under SGMA. DWR is expected to issue more groundwater reviews through the end of January for water basins throughout the San Joaquin Valley, which holds most of the state’s critically over drafted aquifers.
Groundwater managers will then have about six months to answer questions and fix deficiencies noted in the DWR reviews.
Though the Indian Wells Valley water basin is smaller than other basins, its situation and options are more stark, by comparison.
The basin depends on 7,650 acre feet of natural inflow each year and it doesn’t import any water. Nearly 28,000 acre feet are pumped out each year, prompting an engineer for the Indian Wells Valley Groundwater Authority to deem it the “most upside down” basin he’d ever worked in.