By Miles Krieger, Geremy Holm and Steve Anderson
A group of groundwater pumpers, including the local public water provider, Borrego Water District (BWD), entered into a settlement agreement in January 2020 to adjudicate the groundwater rights of the critically-overdrafted Borrego Valley Groundwater Subbasin No. 7.024-01 (Subbasin). The settlement agreement included a proposed physical solution and Groundwater Management Plan (GMP) intended to assure the Subbasin reaches sustainability no later than 2040. The negotiations that resulted in the settlement agreement were prompted by BWD’s and the County of San Diego’s efforts to prepare a groundwater sustainability plan under the Sustainable Groundwater Management Act (SGMA). [Borrego Water District v. All Persons Who Claim A Right To Extract Groundwater in the Borrego Valley Groundwater Subbasin No. 7.024-1. . . (Orange County Super Ct. Apr. 8, 2021).]
Consistent with the terms of the settlement agreement, in January 2020 BWD filed a “friendly” adjudication lawsuit naming the other settling parties as well as other pumpers of groundwater in the Subbasin. As required by the comprehensive groundwater adjudication statute (Code of Civil Procedure, § 830 et seq.), notice of the action was served on the owners of approximately 5,000 parcels across the Borrego Valley. Very limited opposition was expressed to the terms of the proposed judgment. As a result, on April 8, 2021, Orange County Superior Court Judge Peter Wilson issued judgment in the action
Background
The Subbasin underlies a small valley located in the northeastern part of San Diego County. Groundwater is the sole source of water for the valley, providing water for the unincorporated community of Borrego Springs and surrounding areas, including hundreds of acres of citrus farms and golf courses.
In 2014, the State of California adopted the Sustainable Groundwater Management Act to provide for the sustainable management of groundwater basins. Under SGMA, the Borrego Subbasin was designated by the California Department of Water Resources (DWR) as high priority and critically overdrafted. BWD and the County of San Diego (County) jointly opted to become the Borrego Valley Groundwater Sustainability Agency for the Borrego Subbasin (GSA).
A final draft Groundwater Sustainability Plan (GSP) for the Borrego Subbasin was prepared and circulated for public review and comment in late 2019. That GSP determined that the sustainable yield for the Subbasin was 5,700 acre-feet, that the Subbasin had been overdrafted for decades, and that then-current pumping levels of approximately 20,000 acre-feet per year could not be sustained. The GSP also contained an allocation plan and a rampdown schedule to reach sustainability by 2040.
Under SGMA, GSA’s in critical basins were required to adopt a final GSP and submit it to DWR no later than January 31, 2020, or submit an alternative plan to the DWR by the same deadline.
A number of interested parties submitted comments during the three-year process culminating in the issuance of the draft final GSP. Those comments ultimately led to extended negotiations regarding the potential to adjudicate the groundwater rights of the Subbasin.
In January 2020, BWD and a group of major pumpers in the Borrego Subbasin entered into a written settlement agreement, which included a proposed stipulated judgment (the “Stipulated Judgment”). The proposed Stipulated Judgment intended to comprehensively determine and adjudicate all rights to extract and store groundwater in the Subbasin. The Stipulated Judgment also intended to establish a physical solution for the sustainable groundwater management of the Borrego Subbasin. That same month, BWD filed the adjudication action seeking the Superior Court’s adoption of the Stipulated Judgment. Additionally, BWD also filed the Stipulated Judgment with the DWR in January 2020 for review as a GSP alternative under SGMA. After a significant noticing period, Orange County Superior Court Judge Peter Wilson approved the adoption of the Stipulated Judgment on April 8, 2021.
The Stipulation and Judgment
As part of its approval, the court will continue to oversee the administration and enforcement of the Stipulated Judgment. To assist the court in the administration, the judgment establishes a Borrego Watermaster to administer and enforce on a day-to-day basis the provisions of the Stipulated Judgment and any subsequent instructions or court orders. The Watermaster Board of Directors is comprised of five members: 1) a BWD representative; 2) a County representative; 3) a community representative; 4) an agricultural representative; and 5) a recreational (golf course) representative. The Watermaster Board is responsible for overseeing the implementation of the physical solution and the Stipulated Judgment.
Given the lack of viable methods to address overdraft in the Borrego Subbasin through artificial recharge under current conditions, the physical solution includes a reduction in cumulative authorized pumping over time. The physical solution takes into consideration the unique physical and climatic conditions of the Subbasin, the use of water within the Subbasin, the character and rate of return flows, the character and extent of established uses, and the current lack of availability of imported water. In order to reduce pumping, the Stipulated Judgment establishes the initial sustainable yield of the Subbasin as 5,700 acre-feet per year. This sustainable yield may be refined as determined by the Watermaster by January 1, 2025, and periodically updated thereafter through input from a Watermaster Technical Advisory Committee (TAC).
In addition, the Stipulated Judgment assigns a Baseline Pumping Allocation (BPA) to identified parcels (“BPA Parcels”) based upon pumping volumes between 2010 and 2014, as primarily calculated by the County as part of the development of the GSP. The BPA will be used to determine the maximum allowed pumping quantity allocated to the BPA Parcels in any given Water Year (known as the Annual Allocation). In order to monitor usage, the Watermaster has required the installation of meters and will require each pumper to use a meter with telemetry capable of being read remotely by Watermaster staff or to file a verifiable report showing the total pumping by such party for each reporting period rounded to the nearest tenth of an acre foot, and such additional information and supporting documentation as Watermaster may require. De minimis producers pumping less than two acre-feet per year are largely exempt from the Judgment.
Pumpers will be allowed to pump up to their Annual Allocation and will pay pumping fees based on the amount of water pumped. In addition, pumpers will be allowed to carry over water if they underpump allocation in any given year, so long as they timely pay Watermaster assessments. However, a pumper’s carryover account can never exceed two times its BPA and any carryover must be the first water used in the following Water Year. Additionally, BPA transfers within the Borrego Subbasin will be allowed, subject to certain restrictions outlined in the Stipulated Judgment. Permanent water rights transfers will require specific fallowing standards to be satisfied such as: destroying all agricultural tree crops; stabilizing fallowed land through mulching, planting cover crops and/or other dust abatement measures; abandoning all non-used irrigation wells or converting these to monitoring wells; permanently removing above-ground irrigation lines; and removing all hazardous materials.
Annual Allocations will be ramped down over time based upon the Sustainable Yield for the Borrego Subbasin. The rampdown rate is 5 percent per year for the first ten years, which is faster than that proposed under the GSP. The rampdown is anticipated to materially reduce pumping levels in the Subbasin year over year for the first 10-years. Further rampdowns are scheduled to occur from 2030 to 2040 to reach sustainable yield pumping by 2040.
Pumpers will initially be permitted to pump up to 120 percent of their Annual Allocation in Years 1 to 3, to allow for a transitional period provided that they underpump or purchase/lease water in Years four to five to make up for any over pumping in the first three years. Any pumping in excess of Annual Allocation will be subject to an administrative penalty of at least $500 per acre foot, as set by the Watermaster, if not made up by underpumping or purchase/lease of make-up water.
Conclusion and Implications
The Borrego Adjudication and judgment appear to represent a positive method for parties to work together to meet SGMA goals, while also determining groundwater rights. Whether the Borrego case will be used as an example for other basins around California will be revealed in time. The proposed judgment and stipulation is available online at: https://www.borregowaterlawsuit.com/admin/services/connectedapps.cms.extensions/1.0.0.0/asset?id=32b597ab-a083-4d8a-b802-78134160c370&languageId=1033&inline=true
