Presentation at the California Irrigation Institute conference highlights this critically-overdrafted basin’s creative approach to meeting the requirements of SGMA

The Borrego Valley is a small valley in the northeastern part of San Diego County, about 60 miles northeast of San Diego.  Groundwater is the sole source of water supply for the valley; there isn't any surface water or imported water available.  After decades of excessive pumping, the Borrego Groundwater Basin is considered critically-over drafted and dramatic reductions in pumping – up to 70% by the latest estimate – will be needed to reach sustainability.

The town of Borrego Springs is small – about 3500 folks.  Tourism is a major industry in for the area, which is a popular destination in the winter months for ‘snow birds' coming from colder climates to enjoy the mild temperatures.  Borrego Valley has four public golf courses, a tennis center, and horseback riding, as well as being surrounded by the Anza-Borrego State Park.  About 30% of the land use is agriculture, mainly tree and citrus farms.

After the passage of the Sustainable Groundwater Management Act in 2014, the Borrego Valley GSA was formed and work began on the development of a Groundwater Sustainability Plan with the goal of meeting the January 30, 2020 deadline for critically-drafted basins to develop and adopt a GSP.  However, unable to reach agreement, the basin has decided to take a different route to meet the requirements of SGMA.

At the 2020 California Irrigation Institute conference held in January of this year, Michele Staples, a shareholder in the Irvine office of Jackson Tidus, gave a presentation on the creative way the basin came up with complying and implementing SGMA.

THE PROBLEM

She began by presenting a graphic prepared by the USGS showing long-term overdraft that began since about the mid-1980s.

Even with this level of overdraft, it’s a fantastic basin,” she said.  “There are no reports of wells going dry and the local water district doesn’t even have to treat the groundwater, so even though it’s critically overdrafted, there’s not a severe emergency going on locally.  Of course, because it’s a critically-overdrafted basin, we’re subject to the accelerated timeline.  We do have limited options; basically our only real option is to use less water in this basin.”

Before SGMA was enacted, groundwater management was mostly done in reaction to a crisis; well owners would file litigation and sue one another after there was an adverse effect.  However, SGMA is a proactive process that the well owners wanted to participate in, she said.

The goals for the agricultural businesses in the basin were to protect the groundwater resources, have a say in basin management decisions, quantify the available water supply and allocate it fairly, provide flexibility, and establish the process for a neutral decision maker to resolve conflicts.

The GSAs have expansive powers under SGMA that would result in uncertain regulation over time, said Ms. Staples.  Those powers include the ability to implement well extraction limitations, require metering and reporting, and implement water management projects.

No one locally knew what that would ultimately mean, which means uncertainty for business decisions,” she said.

The other big problem with SGMA is that there is a very narrow role for private well owners to participate in GSA governance, she said.  This is an issue because there are a significant number of private well owners in the basin.  Except for PUC regulated water companies and mutual water companies with the agreement of the GSA, there is no avenue for private well owners to have a seat on the governing board.

The problem is that those private water rights are subject the GSA’s regulation without representation on the GSA,” she said.  “I know that SGMA says that it doesn’t affect water rights, but as we all know, in California, water rights are rights to use water; it’s a usufructuary right as us lawyers say.  So of course because SGMA allows GSAs to regulate water use, by definition, it will affect the ability to use water, meaning it will affect water rights, so that’s why we all expect litigation as these plans get closer and closer to implementation.”

EXPLORING ALTERNATIVES

They considered four different alternatives available to them.

Alternative 1: Business as usual.  The GSA would move forward, the private well owners would submit comments and make their record, and the likely result would be the private well owners suing to challenge the GSA’s adoption of the GSP and to commence water rights adjudication.

We were headed down that road, so as the stakeholders became more fractioned in their comments as time passed, the GSA reverted to its top-down drafting of the GSP,” Ms. Staples said.  “The GSA in our case is the local water district, and as in many urban areas, the water district considers private well owners to be competitors for the water, and the water district is answerable to its own ratepayers, none of which are private well owners.”

Alternative 2: Agreements with private well owners.  They considered executing agreements with private well owners to implement the GSP.  “This is allowed under SGMA, however the GSA at the time, was not interested in significant agreements with well owners to implement the GSP,” she said.

Alternative 3: Special legislation.  Ms. Staples said that they spoke with some of their legislators who told them early on that in order for them to carry a bill with special legislation to allow a different governance structure than SGMA, it would require local consensus.  “We simply didn’t have it, but if you are in a basin where you want to do things a little bit differently, another way to address it might be special legislation,” she said.

Alternative 4: Adjudication/GSP Alternative.  At around the end of 2018, they realized they weren’t getting anywhere and were headed toward contentious litigation, both over the GSP and water rights adjudication.  So lawyers representing the three basic primary sectors in Borrego, which is agriculture, recreation, and municipal sectors came together and negotiated a hybrid process for a streamlined adjudication process and then submitting that stipulated judgement as a GSP alternative.

ACHIEVING RESOLUTION THROUGH NEGOTIATION

This is basically a ‘friendly’ adjudication like many of the groundwater basins in California have been subjected to,” said Ms. Staples.  “Everyone would get together and figure out how to manage the basin, then have the court bless their proposal.  Of course, in those days it took many, many years to negotiate settlement agreements.  We had one year, starting last January.”

They negotiated the settlement by having teams of principals and attorneys for municipal users, agriculture, and recreation.  It took half the year just to come up with a term sheet.  They negotiated a settlement agreement and a stipulated judgment by the end of the year, and in an unusual move, both the settlement agreement and the proposed stipulated judgment was published for public comment.  The physical solution is basically a stipulated judgment plus a groundwater management plan that takes the place of the GSP.

All the while we were doing this, the water district and the county were part of the GSA and they had to continue processing the GSP because we had this looming deadline and we didn’t know whether the settlement agreement and stipulated judgement route was going to work,” she explained.  “So there was this parallel path but the GSP wound up forming the basis of what is now the groundwater management plan.”

The groundwater management plan allocates a baseline pumping allocation which divides up the available water based on historic use.  There is a very aggressive ramp down of pumping, but the plan gives the ability for a groundwater pumper to carry over, transfer, or sell any of the baseline pumping allocation that is unused.  There is also a process for data gathering and refined technical analyses that are required over time.

Important in the basin management plan is that we wanted to support the state park and the school district in the area, so their baseline pumping allocation is not subject to ramp down because of the community-wide benefit that both of those entities have,” she said.

Also important is the governance structure.  A 5-member watermaster board will take the place of the GSA that has representatives of the water district, the county, the public, agriculture and recreation, with each board member is appointed by those sectors.  Pending entry of the judgment, there’s an interim watermaster board that’s subject to the settlement agreement.

Bighorn sheep at Anza Borrego State Park, CA; Photo by Joanna Gilkeson/USFWS

There will be a technical advisory committee that will advise the watermaster and an environmental working group that will focus on habitat management and restoration proposals.  The advisory groups will be funded by pumping assessments.

The adjudication and this GSP alternative combination we feel provides a better result than business as usual because it actually expedites basin management,” Ms. Staples said.  “Whereas a GSP is just a plan to do something in the future, this says how we’re going to manage basin.  It avoids litigation and avoids spending a lot of money on lawyers rather than basin management solutions.   It provides for well owner representation on the governing body, and it defines the water supply availability to the best extent that we can now with the limited information that we have.”

It provides for an iterative process to evaluate water supply availability over time and make appropriate adjustments in the rampdown of the baseline pumping allocations,” she said.  “It incorporates the flexibility that I spoke of with the carryover and the water marketing.  It establishes very importantly an expedited conflict resolution process by the overseeing court as a neutral decision maker for future disputes which was so important to ag, rather than having a competitor for the water regulate them.”

Q&A

Question: When you had your agreement and you had to come up with a baseline usage, how was that determined?  How many years did you go back?  And how were the numbers generated?

We used a base period of 2010-2015 and we looked at the historic pumping during that period and the highest year of that period and divided up the allocation that way,” Ms. Staples said. “Interesting thing about Borrego is that most of the water users, almost all of them, are not metered, so for agriculture and recreation, the way that the quantities were developed was through aerial mapping, and records of what crops or turf areas were planted during those years, and then heavily negotiated factors for the vegetation were applied.”

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