A judge in Madera County Superior Court recently granted a temporary injunction on the payment of fees by farmers to fund groundwater sustainability projects mandated by the state. Photo via California Courts

The first fees to cover projects associated with Madera County’s Groundwater Sustainability Plan were supposed to be due this week from farmers pumping water outside of irrigation districts. But a temporary injunction was granted by a Madera County judge on the fees attorneys call unconstitutional, leaving up in the air the ability of the government to impose charges to fund state-mandated projects.

Attorneys for the Valley Groundwater Coalition argue that by calling these charges a fee rather than a tax, Madera County was able to avoid a general vote. The matter will come down to an interpretation of a 1996 law and whether a fee set on only farmers provides enough of a service to them to justify being levied.

These fees would have added — in some cases — two to three times what property owners already pay in property taxes, said Patrick Gorman, attorney for the Valley Groundwater Coalition, an organization of growers suing Madera County fees being levied on them. Gorman is a partner with Fresno-based law firm Wild Carter & Tipton.

“We’re not talking about a couple hundred dollars on your property tax statement,” said Gorman. “We’re talking about several thousand dollars and some cases hundreds of thousands of dollars that are assessed to less than 1,000 property owners total.”

For farmers whose land lies outside an irrigation district — called white areas — the County of Madera has taken up oversight of the land in accordance with the Sustainable Groundwater Management Act, which requires basins reach sustainability by 2040.

To fund water projects, Madera County assigned growers in the three different basins fixed fees based on acreage using rules outlined in California’s Proposition 218 passed in 1996. According to Proposition 218, certain fees could be implemented without the need for voter approval. Rather, those affected could protest the fees. Taxpayers would need 50% plus one to overturn a fee. In August, farmers in the Chowchilla subbasin successfully overturned the fee while those in the Madera and Delta-Mendota subbasins did not get the votes necessary.

For farmers in Madera, those fees are  $246 per acre over five years. But it’s not just fees that some farmers in the area object to.

Gorman said the County isn’t providing the services that California law requires to justify fee increases without a vote of the people. The fee put in place using Prop 218 must be used for services available to the property owner, said Gorman. Being in Madera’s white areas, most farmers have to pump their own water.

“This would be a different analysis completely if … that actually provides water service by canal or ditch or pipeline,” Gorman said about Madera County.

The fee is also only applicable to farmers where there are also homes, golf courses and industrial users.

“Clearly, they use groundwater, their share of this is zero,” Gorman said.

And if the plan does restore groundwater, everyone would benefit, Gorman added.

Ag accounts for 93% of water usage in the Madera subbasin, said Stephanie Anagnason, director of water and natural resources for the County of Madera. That ratio is even higher for Chowchilla, Anagnason said.

The County has four projects identified under its groundwater plan — building recharge sites, repairing wells, retiring farmland and dedicating money to guarantee Madera farmers a stake in the long-awaited Sites Reservoir.

Projects must go through five phases before completion. Grant funding has gotten the projects through early stages. Most of the projects in the Madera subbasin would be completed beginning in 2028, according to a rate study by the County. Chowchilla subbasin projects could be completed in 2024 and 2028.

Gorman said using Prop 218 does not allow for future or potential services. Recharge sites are still being designed, as are efforts to redrill or repair wells in the County. At the earliest, the Sites Reservoir would send water in 2033 — if the project gets off the ground.

But Anagnason said these projects can’t move forward without further funding.

“I think there’s a misunderstanding among some in this group that you have to have projects built completely to offer service and that’s not how anything in water finance has ever worked,” Anagnason said.

Growers have clamored for these projects for some time — and they would ultimately result in more water availability for growers, Anagnason said. Current pumping allotment is between six and 13 inches a year. Almonds, one of the thirstiest crops, can regularly use four acre-feet of water a year.

Growers have gone to Anagnason with pictures of water spilling over from a bypass along the San Joaquin River. One project would create a recharge basin to capture the excess flows.

The Sustainable Groundwater Management Act required that the different groundwater agencies raise their own funds to finance projects in order to maintain local control.

Different agencies have implemented different funding mechanisms.

In the Eastern Tulare County GSA, $200 million is needed to repair the Friant-Kern Canal. Farmers were given a choice of paying a lump sum of $125 million or $200 million over ten years, according to Lois Henry with nonprofit news source San Joaquin Valley Water. Growers opted for the $200 million over ten years.

To do that, the board of directors authorized a fee of $10 an acre rather than using Prop 218. But a transitional pumping fee is set at $245 an acre foot to cover the $200 million tab to avoid a lawsuit with the Friant Water Authority.

The Greater Kaweah GSA used Prop 218 to raise $10 per acre, according to their website. No one at the Greater Kaweah GSA was immediately available to discuss other fees for projects.

A court date has not been set for the hearing between the County of Madera and the Valley Groundwater Coalition. According to a source at Madera County Superior Court, the case is being heard in a family court because judges in the civil court recused themselves.

Anagnason said for a long time, water users have become accustomed to not having to pay for the costs of overdrafting water.

“Someone else is paying the cost of overdraft,” Anagnason said. “Bridges were sinking, roads were sinking, canals were sinking, and those costs were paid by someone else.”

At the same time, Gorman said the County could have avoided the problems by putting the fee to voters.

“If it gets approved, then the results are what the results are. If it is going to force people out of business — which we contend it will — then the voter has spoken, so to speak,” Gorman said.

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Related story: HOW A MADERA FARMER FOUGHT A NEW GROUNDWATER FEE — AND (SORT OF) WON