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A Dissenting Opinion

Digger - November 08, 2017

On September 15, 2017 the "Agricultural Representatives to the Borrego Valley Groundwater Authority Advisory Committee" sent an eight page memo (The Memo) regarding "Omission of an Agricultural Demand Purchase Program and of a Landowner Pumping Rights Transfer Policy from Core Team Work Products, and Resulting Water Rights Implications" to the Borrego Water District's Groundwater Sustainability Plan Advisory Committee. The subject line of the memo is so opaque as to defy understanding but, in plain English, The Memo seeks to ensure that farmers retain as much water and derive as much profit as possible from across-the-board reductions in groundwater production required by Sustainable Groundwater Management Act (SGMA).

In part the farmer's demands are based on the Borrego Water Coalition Groundwater Policy Recommendations which included an especially ill-advised recommendation to pay farmers for fallowing land to meet SGMA's requirement that groundwater production be reduced to no more than the safe yield of the Basin. The recommendation was included without opposition from the BWD's representatives on the BWC who, in effect, sought to buy the farmer's cooperation and avoid confrontation and lawsuits that would delay or stop efforts to craft a Groundwater Sustainability Plan (GSP) for the Basin that appeared to have the support of all parties.

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 The Memo. He points out that it contains a number of omissions and incorrect statements, e.g. it asserts that the groundwater rights of overlying landowners have categorical priority over municipal water rights and that SGMA requires the GSP for the Basin to assign groundwater extraction allocations according to water rights.

It is Mr. Bunn's opinion, however, that, in an unadjudicated basin such as the Borrego Basin, a GSA may allocate extractions by any reasonable method so long as the sustainability goals of SGMA are met. He concludes that allocating the Borrego Water District its historical use and the remainder of the safe yield to overlying users, without any compensation to those users, would be reasonable and consistent with SGMA and California water rights law.

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