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Mojave Pistachios rebuts GA support of AB 779 THE REST OF THE STORY …

IWVGA Supports Assembly Bill 779 – Groundwater Adjudication

A recent press release by the Indian Wells Valley Groundwater Authority would have Indian Wells Valley residents believe that the Indian Wells Valley Groundwater Authority has the interest of local small well owners as their primary concern. The two contributors, Phillip Peters (Supervisor Kern County) and Scott Hayman (Council Member City of Ridgecrest), testified on behalf of AB 779 and urged the Governor to sign the bill into law.  Their press release states;

1. All water rights should be considered during the adjudication.

2. All parties should pay their fair share of mitigation fees required to bring the basin into sustainability and

3. Efforts should be made to limit the costs associated with the litigation.

Paul Nugent, Mojave Pistachios

Let’s take a look at these three assertions against the backdrop of the actions of the Indian Wells Valley Groundwater Authority to date.

Assertion #1.  All water rights should be considered during the adjudication. The real question is who gets to consider the water rights. As of now, the IWVGA has determined water rights and taken away water rights through their policies and effectively forced farmers to give up their water rights or pay a huge fee. It appears that the IWVGA wants to serve as judge and jury, shield themselves from review, and deny due process to those who have legitimate interests.

Or are they saying the IWVGA is considering water rights during the effort to have an adjudication in the IWV? Are these IWVGA members stating that the basin should go through an adjudication to determine water rights?

Summary:  Assertion #1, as a general statement, appears to be logical and reasonable. If there is an inference that the IWVGA will determine who has water rights until an adjudication is finalized is completely absurd. The IWVGA has taken the approach for themselves to pick the winners and losers and the IWVGA does not want any legal challenges to their decisions.

Grade: Fails. The IWVGA fails this assertion unless you agree that the right to water in the IWV is to be determined by the IWVGA. The truth is that the IWVGA only considers the rights of those they choose deserving of the water rights. At this point, I would remind IWV residents that:

1. A large portion of the water users in the IWV do not have representation on the non-elected IWVGA board. Mojave Pistachios has been told that the Kern County representative represents its rights while also telling Mojave they have no rights. The super-majority vote held by Kern County and the City of Ridgecrest allows them to outvote the major domestic water supplier in the IWV. This results in two representatives having very little pumping rights in the IWV and being able to dictate to the rest of the IWV.

2. While the IWVGA may consider water rights, this is different than fairly dealing with the rights of all stakeholders in the IWV. I would suggest you look at the long history of Searles Valley Minerals and the fact they have no vote on the IWVGA. Agriculture is a part of the IWV and the IWVGA firmly believes there is no place for agriculture in the IWV. Small pumpers do not have a seat on the IWVGA board and neither do others who were promised a meaningful place at the table.

3. Lastly, considering water rights is a valid point but must be tempered with access to those water rights. The IWVGA appears to have little fiscal restraint, with the result being although you may get access to water, the cost is so high that the point becomes moot. Ask residents in the IWV what has happened to their water rates since the IWVGA has been in force.

Assertion #2.  All parties should pay their fair share of mitigation fees required to bring the basin into sustainability. This statement that all parties should pay their fair share of mitigation fees should be tempered and explained. This statement is fraught with vagueness and a lack of clarity. The obvious question is what is being mitigated, who is receiving those fees, and what is the benefit to the IWV.

First, how does mitigation bring the basin into sustainability? I assume they are really saying that all parties should pay their fair share of any projects that help get the basin into sustainability.

The IWVGA governance allows those with little water use to set the budget, charge fees, incur costs, and approve projects without the input of those who will pay the bulk of those costs. The IWVGA has proven that they will set fees, raise those fees, use the fees for purposes not the intent of the fee, and claim that their legal costs are not their fault. The IWVGA appears to be out of touch with the economic realities of the water users and prepares budgets without any true understanding of the ability of those paying the fees enacted by the IWVGA. It would have been a good practice to have a finance committee to review the financial capabilities of the IWVGA and give advice to the board rather than rely on those getting paid by the IWVGA to be their source of financial guidance.

Summary: Assertion #2, as a general statement, could appear to be logical and reasonable. The truth is that all parties are not paying for the costs of the IWVGA. The Navy claims exemption under the Federal Reserve Act and the IWVGA has approved policies that exempt certain parties and have allocated water rights in a way that does not require all parties to pay “their fair share”.

Grade: Fails. The burden of paying the costs of the IWVGA as they have allocated those costs is grossly unfair. I would be ashamed if I were on their board and did not consider the plight of the disadvantaged communities and work with them to have a reasonable path forward for them to be able to supply water to their customers at a cost they can bear.

I restate that a large portion of the water users in the IWV do not have representation on the nonelected IWVGA board.  This is taxation without representation in its purest form. The costs of the IWVGA include huge legal fees and very expensive projects that they have chosen without getting the buy-in of those who are being charged those fees. Mojave Pistachios has been paying an extraction fee for years, with the total paid exceeding $1 million dollars, and there is very little to show for this. It appears that the attorneys, consultants, and engineers have been the primary beneficiaries to date of the fees paid by local residents and water users.

Assertion #3. Efforts should be made to limit the costs associated with the litigation. Truer words have never been spoken. Even at this late date, I do believe there is a workable solution to the water woes in the IWV that all parties could agree to and come together in a reasonable time frame and at a much lower cost to the IWV.

Summary:  Assertion #3 is one that all parties could agree to and get behind. There was an attempt to bring the major parties together in a facilitation supported by the State of California and done by Stantec and this seemed to be a good idea and to have a good chance of working. The reason the facilitation fell apart is not understood by all the parties involved. Still, I would note that Stantec reappeared and got awarded work on a very expensive pipeline project approved by the IWVGA.

Grade Fails. The IWVGA is mostly responsible for the large legal fees.

The Rest of the Story hopefully sheds some light on the true facts behind the IWVGA’s push to get AB 779 approved. It appears that the IWVGA wants to operate without oversight and to silence local well owners by representing them in litigation. Based on the history of the IWVGA and their want to silence parties that disagree with their actions, I would be hesitant as a small pumper to go along with the IWVGA representing you and spending your money. As you know, you will be paying for the actions of the IWGA board. In the end, was the push by the IWVGA board members an effort to protect the small pumpers in the IWV, or was it to shield the IWVGA from being questioned about its actions and seeking to deny others due process?

Paul Nugent,

Mojave Pistachios