Ray Shindler - January 10, 2019
The essay below appeared as a letter to the editor of the Borrego Sun entitled "Water Conundrum," Borrego Sun, January 10, 2019.
It appears here by permission of the author.
This is written not only for Borregans to understand the issues, but especially for the Water district, the County, the Water advisory group, and the irrigators.
Why the 2040 timeline and equal allocation reductions are bad ideas for the socio-economic health of the Borrego Springs community.
The Borrego Water District should receive at least 1,700 acre feet of water each year allocation in the current SGMA plan. Why?
In the current plan the two primary issues, the 2040 timeline to reach sustainability and, equal reductions by all users were made by the Water District and the County with almost no input from the advisory group who is supposed to make these decisions but were never consulted.
The plan as written would require the Water District to reduce it's deliveries to below 1,000 afy from the current 1,700 afy it now delivers to all the homes and businesses in the valley.
That would force the Water District to find millions of dollars to purchase very expensive water from the irrigators just to get back to the 1,700 afy number.
The golf courses are in the same situation, with the very important exception of Ram's Hill, which in my opinion has been the smartest player on the block because they have already gone out and purchased farms and have acquired the amount of water they need to keep their operations going at current levels. The same cannot be said for the other golf course developments or the Borrego Water District. The other golf courses and the water district will need to purchase farms just to maintain their current operations.
If the Borrego Water District needs to purchase farms to avoid not having enough water to supply the town, that puts them in direct competition with the golf courses to purchase farms/water. This can only mean that the price of water will be very expensive because of two groups that need to purchase water just to maintain their investments. The water district is already telling us water rates must go up to pay for all these costs.
The Water District is hoping they will have public funding which will give them deep pockets to purchase this water. The question is, will the golf courses have the monies and the "will" to make these expensive investments in water purchases?
What are the impacts of one or more golf courses being forced to fallow their courses?
We have already seen what happens....Ram's Hill. When Ram's Hill was fallowed the value of homes around the golf course plummeted. If the other golf courses are unable or unwilling to purchase farms to acquire water and their courses are fallowed we can expect to see the same thing happen as Ram's Hill a few years ago....home values will suffer. If that happens, all home prices in Borrego will feel the effects.
There is a better way to remedy this situation. One that is fair, reasonable, and meets the requirements under both the SGMA and California Water Law.
The SGMA says we have the legal right to regulate, suspend and/or limit extractions from wells. A reasonable argument can be made that allocating at least 1,700 acre feet of water to the water district is fair and reasonable under California water law and SGMA.
Dr. Jennifer Harder, Professor of water law at McGeorge Law School summed up the current thinking of how the SGMA law and water law go together.
She said, "one approach is to consider the prescriptive rights (Borrego Water District) to be the senior rights and they get all the available water first, then the overlyers...(irrigators). The other approach is to take the prescriptive rights (Borrego Water District) and the overlying rights...(irrigators) and consider them on an equal playing field and reduce their pumping almost pro rata so that all are reduced on some sort of an equitable basis."
The Borrego Water District and the County have adopted the second approach which results in the water district having less than 1,000 acre feet of water when all the reductions are made. Remember they need at least 1,700 acre feet of water each year just to serve what they now deliver to all the homes and business in the valley.
The only legal analysis we currently have on what our legal water right may be according to California water law is by water attorney Tom Bunn from a law firm in Pasadena. He looked at The District's water right and the SGMA law and concluded the water district has a legal water right to at least 1,700 acre feet of water.
So, why has the Borrego Water District decided to give away most of our legal right to water under both the SGMA and California water law?
When asked they tell us they are afraid the irrigators will file a legal challenge to the water districts claim of 1,700 afy of water. If the irrigators do that the courts would look at our situation and tell us what out legal water right is. Professor Harder says..."right now the law is not very clear which approach is correct, or whether one is mandated over the other."
Each case is unique and we would have to put our best arguments before the court to justify 1,700 afy water right. In the meantime the SGMA process must play out. We still need to have a plan by 2020. Professor Harder tells us the courts are now taking the SGMA law into consideration in any adjudication law challenge. She also tells us the court would likely put a stay or hold on any legal challenge until the SGMA process is finished. That would give us additional time to work on a negotiated plan with the irrigators.
Before our plan is adopted it must go to the County Supervisors, a judicial review and the Department of Water Resources has up to two years to make recommended changes and adopt our plan. The Department can also appoint a mediator if necessary or help resolve any outstanding issues like water allocation decisions.
The water district also tells us any legal challenge from the irrigators would cost the water district monies they would rather spend on purchasing farms. The worst case for how much a legal challenge could cost is around a million dollars. If the water district needs to purchase farms they would spend around twenty million dollars, or more, for those purchases.
It seems like it would be worth the risk of a court challenge if we may save many millions by upholding our legal water right of 1,700 afy of water. The worst case in any legal challenge is the court would rule we must give up water pro-rata...in other words, exactly where we are now in the current plan. So, if the irrigators file a court challenge we have the incentive we will receive 1,700 afy or go back to what the water district and the County have already decided. Or, the court could rule we have a legal water right to anything between 1,700 afy and something less than that.
It seems well worth the effort to make our best case for 1,700 afy of water for the Borrego Water District in the current plan and if the irrigators want to spend up to a million of their own monies for a court case they could easily lose as well as win let them go for it.
That calculation for the irrigators is very risky for their best interests. Besides the money they will spend on a court challenge, the issue of their legal water rights are at risk because many of the irrigators have had no metering data to uphold a historical water right. The lack of metering data could be problematical for them in a legal challenge.
Contrast that with the metering data we have from the Borrego Water District. In the 28 year period from 1983 through 2010 the Borrego Water District delivered an "average" of a little more than 3,500 afy of water to its customers. They now deliver half that amount..1,700 afy. One good reason we have a legal water right to 1,700 afy. Also, if the water district receives 1700 afy the irrigators still would receive almost twice that amount.
Mr. Bunn also points out that California Water Code 106 says that the highest use of water is for domestic use and the second highest use of water is for irrigation. That issue was used in one court case in Santa Maria, Ca. Where the judge ruled in favor of three water districts to receive first priority for water.
And, the issue of return water flows is another area the irrigators should be concerned about. The irrigators from time to time flood their orchards to flush out the salts and nitrates that build up in the soil around the trees. The irrigators say the amount of water they use in their orchards for this is around 6,000 acre feet of water each year. Really an astonishing number....the entire amount of water we will use in the valley under SGMA is 5,700 acre feet of water.
Under the current plan the Water District and the County were very generous to the irrigators by giving them 20 percent credit in their allocations for these return flows. Western water law is very clear you receive no credit for return flows in a water rights legal challenge. So if the irrigators want to file a legal challenge they would not get any credit for return flows.
We can easily see what a difference it would make for the community if the water district receives 1,700 afy of water up front in the SGMA plan. We would breathe a huge sigh of relief. We would know we have the water we need to at least take care of current needs...just like Ram's Hill has done. As opposed to wondering if we can get the monies to purchase farms and how long that could take...and, what about the golf courses? Do we want the Borrego Water District to be in competition with the the golf courses for scarce water?
The second issue is the current timeline as written in the plan will not achieve sustainability until 2040 or maybe longer if we find the recharge is less than 5,700 afy. That is fraught with uncertainties that a most recent study conducted by the water district tells us could Result in "unrecoverable" economic risks for the Borrego Water District.
First, SGMA does not mandate we have to wait until 2040 before we reach sustainability. We can, and should, choose a faster timeline. A shorter reduction timeline period provides for far less uncertainties than going out to 2040.
The study concludes... If we go out to 2040 we lose an additional overdraft of 115,000 afy water from our aquifer. Accelerated reduction periods of 10-15 years instead of 20 years can provide significant and proportional decreases in total overdraft and related water level decline.
The uncertainties increase over time the longer you wait to achieve sustainability. Shorter reduction periods allow us to know if sustainability has been achieved.
The study tells us mandated 5 year reviews do not assure a means to recover from mistakes in groundwater sustainability policy decisions based on a "better future".
If we wait until 2040 to a achieve sustainability we will not know until then if we actually have done that. What about water quality as we draw down the aquifer for 20 more years? Will wells need to be restructured? The entire community will be waiting for twenty more years to see if we have sufficient potable water for our community.
Sooner timelines rather than later timelines makes way more sense for the community to provide certainty we will have sufficient potable water. That, and a 1,700 afy allocation for the water district are two musts for the community to protect our businesses and home values going forward.
The plan must be changed to incorporate these key issues.
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