A lawsuit over whether the Madera County Groundwater Sustainability Agency (GSA) improperly conducted an election to assess fees on more than 900 parcels of land to pay for groundwater projects will continue, according to a judge’s ruling issued Thursday, Feb. 27.

However, an injunction that had prevented those fees from being collected for nearly three years was also lifted by Madera County Superior Court Judge Eric LiCalsi.

LiCalsi did not prevent the fees from being assessed retroactively, which would be a huge financial hit to farmers. In the Madera subbasin, fees are $246 per acre, per year. In the Delta-Mendota subbasin, the fees are $183.

“That’s $20 million a year spread out over 900 property owners,” said Attorney Patrick Gorman, who represents the Valley Groundwater Coalition, which was formed by growers who alleged that an election to establish the fees under Proposition 218 rules was done improperly.

Whether the fees will be assessed retroactively, when they will be assessed, or even if they will remain at the same level, are all issues still to be determined by the GSA board, said Stephanie Anagnoson, the director of water and natural resources for Madera County who also serves as the GSA Manager.

“There isn’t any intention of trying to punish people,” Anagnoson said of the fees. “The question is, how can we best comply with what we all agreed to do in our Groundwater Sustainability Plan that seems to work for everybody?”

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Not Set in Stone

The fee issue will be hashed out by the GSA board in public meetings before any decisions are made on how much will be assessed and when, Anagnoson said.

Since they were first instituted in 2022, the GSA has received several grants for recharge, land repurposing and well mitigation projects, which have been ongoing. It also instituted pumping allocations that Anagnoson said appear to be working. So, groundwater use has gone down somewhat.

“We’ve been looking for ways of reducing those fees based on the success of those projects,” she said.

An April 16 date has been set for the next case management conference.

Attorneys for both sides felt LiCalsi’s ruling was a bit of a mixed bag.

“We were disappointed the court denied the GSA’s (motion to dismiss the case) but pleased the injunction was lifted and now the GSA can move forward with managing these basins,” said attorney Kyle Brochard, who represented the Madera County GSA.

Gorman, who represents the farmers, said he was glad both sides could “finally get to the merits of the case” rather than arguing over what he deemed technicalities.

Pay First

The County GSA had sought to have the case dismissed under what’s known as the “pay first, litigate later” rule. That is a longstanding rule that fee, or tax, objectors must pay the money even if they sue the government agency over the fee. If the fee is found improper by the courts, they can get a refund. But they can’t hold up taxes and fees through litigation.

“Otherwise, thousands of people – millions of people – would do that,” LiCalsi said during the hearing Thursday.

A Kern County SGMA case reiterated that rule very clearly when Mojave Pistachios lost its lawsuit against a $2,130-per acre foot groundwater “replenishment fee” in Feb. 2024. Mojave Pistachios never paid the fee, then sued, which isn’t allowed.

LiCalsi cited the Mojave case for both dissolving the injunction against the Madera County GSA fees, as well as not dismissing the underlying case.

His reasoning was that, had the Mojave decision been in place prior to the Madera court imposing the fee injunction in December 2022, the injunction never would have been issued. LiCalsi also said that because some farmers had paid the fees before the injunction, they had complied with the “pay first” rule, so the case differed somewhat from the Mojave Pistachios case.

“We’re going to have our members pay the fee and if the court determines the County was wrong and throws out the Prop. 218 election, the county will have to refund every penny,” Gorman said.

He said his members understand the groundwater issues very well and know that the aquifer can’t sustain pumping at past levels.

“We agree with more recharge, water banking, capturing additional flows during the wet years. That’s all good stuff and that’s where the focus needs to be,” Gorman said.

Anagnoson said some farmers and farmer groups are doing some projects independently and the County GSA is moving forward with grant funded projects. But without a steady and predictable funding source projects aren’t being done “…on the scale growers envisioned with us during our groundwater planning process.”

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Large Scale Projects on Hold

When the Sustainable Groundwater Management Act (SGMA) was implemented in 2015, Madera County agreed to take over management of what are known as “white lands,” or farmland that’s outside of irrigation district boundaries. Those areas rely almost exclusively on groundwater.

In Madera County, the white lands area covers about 215,000 acres across three different groundwater subbasins, the Chowchilla and Delta-Mendota subbasins and Madera subbasins.

In the Chowchilla subbasin, farmers mounted a successful campaign against proposed land fees, Anagnoson said.

Without money for projects, the Madera County GSA has focused on demand management. It set strict pumping allocations with a penalty for going over those allocations set at $300 per acre foot, ramping up to $500 per acre foot by 2040.

The allocation for Chowchilla farmers is 25.1 inches per acre, per year, which will ramp down as the SGMA deadline of 2040 approaches.

In the Delta-Mendota subbasin, farmers were allotted 18.9 inches per year and Madera subbasin farmers have 27.1 inches this year.

That’s right at, or below, two acre feet, per acre, per year – not enough for most permanent crops, Anagnoson acknowledged.

Funding generated through the disputed fees, she said, would allow the county GSA to build facilities, buy water and help farmers repurpose land.

“That would be adding water to the system so farmers would end up with a higher allocation,” Anagnoson said.

(Freelance writer Hannah Johansson contributed to this article.)

About the Author

CEO and editor Lois Henry has spent 30 years covering the San Joaquin Valley.

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