PLEASE READ THE NOTICE CAREFULLY. ANY RIGHTS YOU CLAIM TO PUMP OR STORE GROUNDWATER FROM THE BASIN IDENTIFIED IN THE NOTICE MAY BE AFFECTED BY THE LAWSUIT INITIATED BY THE COMPLAINT SUMMARIZED BELOW.
1. What is the Borrego Water Lawsuit about?
The Borrego Water Lawsuit is a “comprehensive adjudication” filed under California Law (California Code of Civil Procedure sections 830 et al.) for a determination by the Court of all groundwater rights, whether based on appropriation, overlying right, or other basis of right, and use of storage space in the Borrego Springs Groundwater Subbasin (“Basin”). The California Department of Water Resources (“DWR”) has designated the Basin as “critically overdrafted,” which means over pumping endangers the Basin’s long-term sustainability. Because of this designation, the groundwater withdrawals from the Basin must be reduced to the sustainable yield over the next twenty years and beyond under the California Sustainable Groundwater Management Act (“SGMA”) that was enacted in 2014.
Borrego Water District (“BWD”) filed a complaint initiating an action for a comprehensive adjudication of the Basin, which is DWR groundwater basin No. 7-024.01. The Complaint alleges two causes of action: (1) comprehensive adjudication of the Basin; and (2) preliminary injunction pursuant to section 847 of the Code of Civil Procedure. The Complaint requests the following relief: (1) a judgment to comprehensively determine and adjudicate all groundwater rights in the Basin and provide a physical solution for the perpetual and continuous management of the Basin; (2) a preliminary injunction to provide for the management of the Basin, during the pendency of this action including for the appointment of an interim Watermaster; (3) entry of judgment against all defendants who fail to appear in this action that they are bound by the judgment and physical solution, and their water rights and storage rights in the Basin, if any, are limited to the terms of the physical solution; (4) judgment against all persons who, presently or in the future, own an interest in real property overlying the Basin and who fail to appear in this action that they are bound by the judgment and physical solution, and their water rights in the Basin, if any, are limited to the terms of the physical solution; and (5) such other and further relief as the Court deems just and proper.
2. Is there a proposed settlement of the Borrego Water Lawsuit?
Through the lawsuit, BWD and others seek to sustainably manage the Basin in perpetuity with a Court-approved management structure to comply with SGMA and to clearly define water rights and responsibilities in the Basin. BWD and a group of major pumpers and stakeholders in the Basin, who collectively comprise more than 90% of the annual groundwater pumping in the Basin, have entered into a written settlement agreement. The settlement agreement is intended to “establish the terms and process for their stipulation to a judgment that comprehensively determines and adjudicates all rights to extract and store groundwater in the Borrego Springs Groundwater Subbasin of the Borrego Valley Groundwater Basin and that establishes a physical solution for the Sustainable Groundwater Management for the Basin and complies with Article X, section 2 of the California Constitution” (the “Settlement Agreement”).
The Settlement Agreement includes terms for pumpers to reduce their pumping over time so that total Basin pumping reaches sustainable levels by no later than 2040, as required by SGMA. Under the Stipulated Judgment, the Anza-Borrego Desert State Park and the Borrego Elementary School receive small permanent rights to Basin pumping that do not require reductions.
The Settlement Agreement includes a proposed stipulated judgment (the “Stipulated Judgment”), which the Settling Parties intend to present to the Court pursuant to Section 850 of the Code of Civil Procedure. If the Stipulated Judgment is approved by the Court, it will determine water rights for all groundwater users in the Basin. Specifically, it defines Basin water rights for each pumper producing two acre-feet or more in the Basin and imposes a “physical solution” regarding Basin management, including rampdown and the potential use of Basin storage space, overseen by the Court, through the appointment of a “Watermaster.” Individual homeowners and landowners who do not pump water will not receive water rights under the Stipulated Judgment and will not pay pumping fees or other required payments under the Stipulated Judgment.
The Stipulated Judgment offers a permanent, durable solution to Basin water management issues. The Settling Parties intend for the Stipulated Judgment, including the Groundwater Management Plan (“GMP”) attached thereto, to implement the physical solution for the Basin, satisfy the substantive objectives of SGMA, and serve as an alternative to a Groundwater Sustainability Plan, following approval by DWR, as required under SGMA. The GMP will be administered by a Court-established Watermaster, with input from a Technical Advisory Committee (“TAC”).
Documents related to the Settlement Agreement and proposed Stipulated Judgment are available on the “Important Documents” section of this website.
3. Why did I receive notice of the lawsuit?
Under California law, BWD was required to give the Court-approved notice of the adjudication to all owners of land within the Basin (“the Notice”). San Diego County (“the County”) provided BWD with the names and addresses of all property owners overlying the Basin, and BWD was required by the Court to send you the Notice.
4. How can I participate in the lawsuit?
The Notice packet you received included a form answer. If you claim rights to pump or store groundwater from the Basin and wish to participate in the Court process, you may become a party to this lawsuit by completing and filing the answer, along with Court filing fee, on or before the deadline specified in Notice. The Notice provides you with the Court’s information. You must also send a copy of the completed form answer to BWD’s attorney, whose contact information is listed on the Notice and on this website. Participation in the lawsuit requires you to provide all information regarding your actual groundwater use. Note that those who pump fewer than two (2) acre feet per year of groundwater (i.e., fewer than approximately 650,000 gallons per year) are not subject to most provisions of the Proposed Stipulated Judgment and will not be assessed fees by the Watermaster. You may also attend a case management conference that the Court has set for November 20, 2020 at 9:00 a.m. in Orange County Superior Court, Complex Center, Department CX 102, located at 751 W Santa Ana Blvd, Santa Ana, CA 92701.
5. Do I have to participate in the lawsuit?
You are encouraged to consult an attorney if you need legal advice. You do not have to participate in the lawsuit, unless you want to participate in the Court proceedings or object to the terms of the Stipulated Judgment. BWD and the settlement parties have proposed that “de minimis pumpers,” those that pump or will in the future pump fewer than two acre-feet (or less than approximately 655,000 gallons) of water per year, will not generally be affected by the lawsuit. More information about de minimis pumper rights and obligations can be found in the draft Stipulated Judgment.
6. How is the Comprehensive Adjudication anticipated to proceed?
A Case Management Conference in the groundwater basin adjudication proceeding will occur on November 20, 2020 at 9:00 a.m. in Orange County Superior Court, Complex Center, Department CX 102, located at 751 W Santa Ana Blvd, Santa Ana, CA 92701. If you intend to participate in the groundwater adjudication proceeding, you are advised to attend the initial case management conference in person or have an attorney represent you at the initial case management conference.
BWD and the Settling Defendants anticipate seeking a preliminary injunction under Section 847 of the Code of Civil Procedure to include, among other things, (1) a moratorium on new or increased appropriations of groundwater beyond those allowed under the Stipulated Judgment; (2) a limitation on, or reduction in, the diversion or extraction of water; (3) an allocation among the parties establishing amounts of extraction allowed during the pendency of the comprehensive adjudication; and/or (4) procedures for voluntary transfers.
BWD and the Settling Defendants also anticipate seeking entry of a proposed stipulated judgment supported by more than 50 percent of all parties who are groundwater extractors in the Basin or use the Basin for groundwater storage and by groundwater extractors responsible for at least 75 percent of the groundwater extracted in the Basin during the five calendar years before the filing of the complaint, and which meets the criteria described in Section 850 of the Code of Civil Procedure.
7. I get my water from BWD. Will that change?
No. You will continue to get your water from BWD. BWD is a municipal pumper, so it will be regulated by the Stipulated Judgment.
8. Who is the Watermaster?
The Watermaster is a court-appointed entity with a five-member board of directors that will oversee implementation of the Stipulated Judgment. The Watermaster board of directors will hold regular meetings open to the public. Each of the following entities appoint one member to the Watermaster Board of Directors: BWD, the County of San Diego, a Borrego “community representative,” the Borrego agricultural community, and the Borrego resort community.
9. Who pays for the Stipulated Judgment and Watermaster?
Watermaster overhead and other costs will be paid by pumpers who pump more than two acre-feet per year in proportion to their pumping rights. BWD’s share of those costs is about 10%. The costs of filing and serving notice of the lawsuit have also been paid by the Settlement parties.