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Summary of: "Notice of Commencement of Groundwater Adjudication in the Borrego Valley Groundwater Subbasin"

Digger - October 5, 2020

On or about September 21, 2020, property owners in Borrego Springs, CA received a sheaf of paper from the Superior Court of California, County of Orange entitled "Notice of Commencement of Groundwater Adjudication1 in the Borrego Valley Groundwater Subbasin" (Notice) concerning a Case Management Conference2 (CMC). It contained a welter of opaque legalese that may be off-putting and confusing to those who have not closely followed events over the five years since passage of California's Sustainable Groundwater Management Act (SGMA) in 2014. What follows is a layman's attempt to summarize the salient points of the Notice and translate them into plain English.

The Borrego Water District (BWD) initiated the Groundwater Adjudication of the Borrego Valley Groundwater Subbasin (Subbasin,) to:

  1. Obtain a preliminary injunction, including appointment of an interim Watermaster3 for the Subbasin, to provide for management of the Borrego Subbasin on an "interlocutory" (temporary or provisional) basis until the adjudication case is decided.
  2. Adjudicate the Borrego Subbasin and provide for its management in perpetuity via a physical solution.4

In this case, a majority of the interested parties ("settling parties") entered into a "settlement agreement" that provides a physical solution for the Basin including a proposed "Stipulated Judgment" to adjudicate water rights in the Subbasin and establish the physical solution for sustainable management of the Subbasin's safe yield5 as an alternative to the Groundwater Sustainability Plan required by California's Sustainable Groundwater Management Act (SGMA). In effect, the law suit asks for the courts blessing of a deal already reached by a majority of the interested parties to determine who gets how much of the Subbasin's approximately 5,700 acre foot safe yield.

If fifty percent of all pumpers in the Basin and seventy-five percent of those who pumped more than seventy-five percent of groundwater extracted for five years before the suit to adjudicate the Basin was filed (January 30, 2020) agree, the Court may impose the Stipulated Judgment on all parties, i.e. all pumpers in the Basin extracting more than two acre feet of groundwater per year.

BWD seeks imposition of a Stipulated Judgment and physical solution based on the previously agreed upon Stipulated Agreement on:

or, essentially, anyone who extracts more than two acre feet of water per year from the Subbasin.

Most residents of Borrego Springs should not be directly and immediately affected by adjudication of the Basin because they obtain their water from the Borrego Water District which was a party to the settlement agreement and will act as their agent in the adjudication process and thereafter. Nonetheless, there is a one-sentence paragraph in the Notice that is of extraordinary significance for Borregans who now or in future may obtain their water from the Borrego Water District. It is Paragraph 36, page 12, in a section titled FIRST CAUSE OF ACTION: "BWD has the right to utilize water from the Basin to meet existing public water needs and also to utilize increased amounts of water from the Basin as necessary to meet future needs." This short paragraph is important because in the run-up to the settlement agreement the repeated efforts of many concerned citizens to have language inserted that guaranteed BWD would be able to meet the current and future needs of of its customers were consistently rebuffed. If this paragraph means what it clearly says, however, it ensures exactly that.

1 A groundwater management method typically used in groundwater basins that have been overdrafted for at least five consecutive years. It is the product of a law suit among basin pumpers to judicially determine each pumper's share of a basin's safe yield.

2 A meeting, usually within 180 days of the filing of a lawsuit, at which both sides of the law suit, their lawyers, and the judge decide how to handle a case. It and covers the status of the case and the time estimate for trial.

3 One who allocates the legal right to use water from certain sources.

4 A settlement to a water controversy intended to allow contending parties to make maximum beneficial use of the contested water supply by allocating a basin's available water among them.

5 The limit to the quantity of groundwater that can be withdrawn regularly and permanently without depletion of the storage reserve or producing other undesired effects.

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