"Digger"

Thomas S. Bunn III is one of California's most accomplished water attorneys and a partner in the firm of Lagerlof, Senecal, Gosney & Kruse, LLP that has played a prominent role in the development of California water law and is recognized as one of the State's leading water law firms. Mr. Bunn was asked to respond to comments and a written report by Borrego Water District Board member Lyle Brecht regarding the adjudication issue in which, among other things, he claimed that:

BWD could not disclose the legal basis for certain decisions because it is a public agency;

Adjudications of groundwater basins do not address environmental issues/uses;

Reductions in water use necessary to reach the safe yield of the Borrego Valley aquifer must be "proportional," i.e. farmers, golf courses, and domestic users must all reduce their water use by the same percentage from an agreed upon baseline without exception.

Members of the ratepayer group took exception to Director Brecht's assertions and asked Mr. Bunn for comments and a critique. Here is his reply.

From: Tom Bunn, Lagerlof, Senecal, Gosney & Kruse, LLP
Date: April 24, 2019 at 8:29:21 PM PDT
To: Ray
Subject: RE: April 23, 2019 Borrego Water District Board Agenda

Hi Ray,

A few comments:

Attorney-client communications are privileged, whether the client is a public agency or not. However, the board could decide to release a report.

I think what Lyle said was that adjudications typically do not address environmental uses, not environmental issues. But they are doing so more and more. For example, the pending Ventura River adjudication is all about environmental uses. Adjudications can also consider quality issues. The archetypal example is seawater intrusion.

Prescriptive rights have the same priority as self-help rights, so in a case based on prescriptive rights, the prescriptive and self-help water rights are all reduced proportionately to the safe yield. The dispute is often over what the starting number is for each user (the base right). This in turn can depend on the choice of prescriptive period(s) and the ability of users to prove up their historical use.

There is also the potential domestic use priority, which has not been tested in court. I think Lyle does a disservice by talking about what adjudications usually do. Adjudications are tailored to the needs of the users in the particular basin. A physical solution is a flexible tool that can cover all manner of issues, if they exist in your basin.

Tom