Ag lawyers make lengthy objections

The Indian Wells Valley Groundwater Authority last week voted unanimously to adopt a transient pool and fallowing program and also approve findings that the programs are exempt from California Environmental Quality Act (or CEQA) review — meaning the programs are not considered to have a significant impact on the environment.

The decision came down after an intense two-day meeting Aug. 20 and 21 culminating with an unsuccessful protest hearing against the IWVGA's basin replenishment fee and the authority's subsequent four to one approval of the fee. IWV Water District Director Ron Kicinski was the lone no vote on the replenishment fee.

The transient pool and fallowing program is intended to ease the transition away from farming land over the basin.

"It is designed to provide some relief to the agricultural users who we don't think can pay this replenishment fee or at least that's what they have told us," County Counsel Phil Hall said Aug. 21. Hall added that the transient pool and fallowing program are also intended to help those interests that "don't have other access to water that they can bring in."

Water users eligible for the fallowing program can either continue to pay water rates as charged (which will obviously go up due to the replenishment fee) or they can go into the fallowing program. This would essentially involve negotiating the sale of their business with the IWVGA.

The transient pool option involves setting aside a block of water which would allow the user to get a certain allotment of water for free to use anyway they want.

"We set aside a block of water so a person can say I just want to pump for a few years, then I will go away," IWVGA Chair Supervisor Mick Gleason explained to the Daily Independent. "They get a certain allotment of water for free and they can pump any way they want."

Gleason added, "it's a water buyout, they time their transition out."

"What those that have a transient pool allocation are going to be looking at moving forward is, they can reject the transient pool allotment in here and they can continue pumping in accordance with basin replenishment fee and other applicable fees," Hall said.

Hall gave the rationale for the arrangement: "Anybody in this pool will be paying because they will be overdrafting just like those paying the replenishment fee are going to be overdrafting the basin, so well damages that we've anticipated need to be paid for by this fee."

Hall added, "Or they can accept the allotment and negotiate a sale of their allotment to the groundwater authority through the fallowing program."

Agricultural interests and other stakeholders reportedly filed letters with various suggestions and objections, some asking that the decision on the fallowing program and transient pool be delayed.

Derek Hoffman, attorney for Meadowbrook, called in objecting that "in its current form the program is not truly voluntary. It actually forces qualified transient pool pumpers like Meadowbrook to either pump for a little while then fallow, fallow then sell its allotment to the authority for some undetermined amount, or pay the replenishment fee based on the authority’s sustainable yield allocation theories.” Hoffman also raised questions about the sustainable yield allocation theories, the rubric upon which all of the water allocation and the plan itself is based.

Hoffman brought up questions and concerns about CEQA findings and exemptions particularly, concerns about unmitigated wind blown dust and sand.

He also asked how exactly the transient pool and fallowing program would be funded.

Hoffman requested a delay in adopting the program until at least January as well as make revisions in the language as well as providing transferability to other pumpers.

One item causing dispute was the provision that pumpers who indicate an interest in the program have to waive legal claims.

Hoffman objected to language in the description of the plan that "seems to demand qualified transient pool pumpers must release their claims by Oct. 1 in order to participate in the pool or even begin negotiations with the authority to sell an allotment."

"The release of claims language is a serious impediment to qualified pumpers considering participating in the pool," Hoffman said.

Hall made a complicated argument that language in the resolution allowed for Hoffman's requirements, which Hoffman disputed.

"I appreciate the sentiment. I appreciate the comments from General Counsel Hall," Hoffman said. "I don't feel comfortable with the language in the document. As far as I read it I don't believe that's how it reads ... my request would be that the board make those clear changes in the document so there's no ambiguity there."

"I don't expect anybody to waive claims fully until they decide that they are fully in the program," Hall said.

Hall said that the resolution, once approved, can be modified to include language that should be acceptable to Hoffman in September.

Elizabeth Esposito, attorney for Mojave Pistachios, the Nugent family trust and Sierra Shadows Ranch, also called in with a detailed list of objections.

"We object to the entire structure of the transient pool, vis a vis the Navy carryover allocations that have been granted to other water users. We believe that the pool imposes water rights priority decisions that have no basis in common law," she said.

"As proposed that the pool would provide participants with just a small one-time allocation that's just enough for a few years of continued production, but at the same time many other water users in the basin would be allowed to continue pump all of their annual demand without any payment of any fee.

"We believe there is no legal or factual basis for this disparate treatment and that this unequal scheme is problematic under SGMA, under common law rights water law, under the constitution."

Esposito also objected to the condition that participation in the program should include a release of "what the staff report describes as quote 'any and all claims against the authority.'

"I ask why should a pumper be required to release their legal claims against the authority to exercise their overlying water rights that are already recognized under law. I think this condition is inappropriate and it represents essentially a strong-arm tactic."

She added, "We are not seeing anywhere else in the state of California that other GSAs are asking pumpers to relinquish their legal rights in order to exercise water rights that have already been recognized under the law. I think at bottom this condition illustrates that the authority knows that it is on tenuous legal ground with the allocation structure because the release of legal claims would otherwise be unnecessary."

Esposito also asked that Mojave Pistachios be added back into the transient pool and argued that the project is not covered by CEQA exemptions.

In response to another caller's objection about using the replenishment fee dollars for the fallowing program, both Hall and Gleason said it is their understanding it is acceptable to do so.