Hannah Frances Johansson, SJV Water
The end of a two-year legal fight over who should pay, and how much, to replenish the groundwater beneath Madera County could be in sight.
A motion to dismiss the lawsuit by a group of farmers against the county is set to be heard June 18.
The outcome could determine whether Madera County, which acts as the groundwater sustainability agency (GSA) for hundreds of thousands of acres across three water subbasins, can finally move forward on a host of projects to improve the water table per the Sustainable Groundwater Management Act (SGMA).
From the farmers’ point of view, the outcome of this case could make or break their farms, some that have been in their families for generations.
The crux of the lawsuit is the county’s use of what’s called a Proposition 218 election to assess fees on land within its jurisdiction. Those fees were to be used to pay for projects to reduce pumping and build water reserves – all projects outlined in Madera’s groundwater plan, which the state approved in late 2023.
Race to the bottom
Under SGMA, all lands in over drafted subbasins have to be administered by a groundwater sustainability agency (GSA). Most GSAs were formed within or among existing agricultural water districts. But lands outside water districts had to come under special management zones within GSAs or other government entities.
In Madera, the county took on management of those non-districted lands, about 215,000 acres across three different groundwater basins.
Farmers on non-districted lands have never paid land assessment fees to water districts to import water and often rely almost exclusively on groundwater.
As lucrative permanent crops, such as almonds and pistachios, exploded across the San Joaquin Valley, the pull on groundwater deepened.
Then the 2012-2016 drought hit, the worst in recorded California history, and people’s wells started going dry.
Madera County suffered a large number of domestic wells going dry during the drought and currently has the highest number of reported dry domestic wells in the state.
Subsidence, land sinking, has also been exacerbated by excessive groundwater pumping and wreaked havoc on local infrastructure.
SGMA was passed in 2014, largely as a result of what happened in the San Joaquin Valley.
Double whammy
The state’s first-ever attempt at regulating groundwater has been tricky across the board, but it set farmers in non-districted lands up for a double whammy – suddenly they had to pay new fees and adhere to restricted pumping allocations.
The Madera County GSA tried to institute land assessment fees in each of the three subbasins it covers, including the Chowchilla, Delta-Mendota and Madera subbasins.
In the Madera subbasin, the county set fees as high as $246 per acre per year. That money was intended to fund projects so it could pay to buy surface water, build recharge basins, pay to fix domestic wells and compensate farmers to fallow land.
“A gun to our heads”
But the fees frightened and angered numerous growers who felt blindsided by the county’s actions. They showed up to protest at a county board of supervisors meeting to certify the results of the Proposition 218 election, which is required when new or increased land assessment fees are imposed.
“You people are putting a gun to our heads” one woman yelled into the podium microphone at the meeting in June 2022, the day the fees were enacted.
“You can’t pay the chemical bills no more. You can’t pay the water bills no more. You can’t pay the hired help no more,” the woman continued as the crowd broke into applause. “This will kill us.”
Later in the meeting, the clerk announced that landowners in the Chowchilla subbasin had voted down the fees.
But landowners in the Delta-Mendota subbasin had failed to vote down an assessment of $138 per acre. And landowners in the Madera subbasin had failed to vote down the $246-per-acre fee.
A group of farmers banded, now called the California United Water Coalition, sued saying the use of a Proposition 218 election was improper.
Proposition 218 allows government entities, including GSAs and water districts, to impose property-related fees without a general election. To strike down the fees, landowners needed to submit a majority protest to the County before the deadline. Otherwise, the fees passed.
The Coalition won an injunction against the fees and have been waiting for a trial, which was originally set for July 2. But last month the county filed a motion to dismiss the case, which will be heard on June 18.
The group knows that change is necessary to curb overpumping, but objects to the use of Proposition 218, to impose the fees.
Make or break fees
The Coalition says the county did a poor job reaching out to inform landowners what was happening. And they object specifically to how tenant farmers, those who lease their land, were left in the dark, unsure if they were eligible to submit protest votes.
The county says it went “above and beyond” to notify eligible voters of the upcoming election.
“It’s like ten angry people and some of them have a lot of money,” said Stephanie Anagonson, director of water and natural resources for Madera County. “They sent mailers that were misleading and bought billboards calling it a tax and telling people to protest. So if people missed the memo and didn’t understand, they were under a rock.”
Farmer and Coalition leader Ralph Pistoresi sees it differently.
He helped galvanize opposition to the fees after discovering the county’s notice, a flier that was on its way to the trash before his mother brought it to his attention. Pistoresi then sent out his own notices urging people to vote.
From the Coalition’s perspective, the injunction has provided a two year period of reprieve. Some farmers believe that the fees, if the injunction is lifted, will force their farms to go under, impacting Madera County’s economy as a whole.
“We’d be out of business,” said Matthew Nonini, a farmer named in the lawsuit, who leases a little more than 100 acres in the Madera County GSA. “There’s not a crop you can grow today to make a return that’s going to be able to pay those fees.”
Ninoni said his family has been farming since 1909.
Cost of doing business
Others believe in the inevitability of SGMA, but disagree with the County’s approach.
“The way we’ve been doing things for the last 20 or 30 years – we can’t do that continuing forward,” said Karun Samran, from Bapu Farming Co. Samran was recently elected to serve on the Board of the Chowchilla Water District. “SGMA just changed everything.”
Sarah Woolf, a manager of the Triangle T Water District, which relies heavily on groundwater, said the fees are necessary.
“We have to figure out how to make this work. If you can’t, then you’re not going to be in business. That’s just the economics,” Woolf said. “Every GSA is collecting fees.”
From the perspective of the County, the injunction has left the groundwater agency without the funds it needs to implement projects. It filed the motion to dismiss the case, saying the lawsuit had clear errors.
“We can’t do the large-scale infrastructure for recharge other than what we have grants to pay for. We can’t purchase [surface] water. We have a land repurposing program that we don’t have funding for,” Anagnoson said.
“We got a lot of funding early on, more than other places did, and I think it gave people the impression that SGMA was free.”
This conflict has slowed SGMA’s already glacial rollout, which has left residents in water vulnerable areas just as vulnerable as before.
The big picture
The County’s decision to file a motion to dismiss the lawsuit comes on the heels of an appellate court decision in the case of a large pistachio grower in Ridgecrest who refused to pay fees of more than $2,000 per acre-foot for groundwater.
For the first time in a SGMA-related case, the courts upheld the “pay first, litigate later” rule, which has a long history of legal precedent.
The Madera County GSA believes this should apply to the injunction against its fees.
In an email to growers, Anagonson stated that if the injunction is lifted, fees will not necessarily apply immediately or retroactively. The county is also looking for ways to reduce fees.
“One purpose of the fees is to ensure that the region has water for farmers long term,” the County’s lawyers wrote in their reply for motion for Judgement.
These lawsuits are among a handful SGMA-related cases making their way through courts across California.
Left on the sidelines
Residents of Fairmead, an unincorporated low income community, saw their wells go dry starting around 2014. A community organization,
Fairmead Community and Friends, brought in help from outside organizations to get drinking water to homes.
Many took out loans and put liens on their houses to drill their wells deeper. Some moved away, and a handful of people are still reliant on bottled water and water trucks for basic household functions.
“If we don’t learn from it and start doing something different, then it’s going to happen again,” said Vickie Ortiz, long-time resident of Fairmeand and secretary of Fairmead Community and Friends. “The drought’s going to happen again.”
SJV Water is a nonprofit, independent online news publication covering water in the San Joaquin Valley. Lois Henry is the CEO/Editor of SJV Water. She can be reached at lois.henry@sjvwater.org. The website is www.sjvwater.org.
