Borrego Water District vs. All Persons Who Claim A Right To Extract Groundwater In The Borrego Valley Groundwater Subbasin No. 7.024-01
Borrego Springs Subbasin Groundwater Adjudication
Case No. 37-2020-00005776

Frequently Asked Questions Regarding The Proposed Stipulated Judgment – August 2020

 

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  • Borrego Water District (“BWD”) has filed a “comprehensive adjudication” entitled Borrego Water District v. All Persons Who Claim A Right To Extract Groundwater In The Borrego Valley Groundwater Subbasin No. 7.024-01 Whether Based On Appropriation, Overlying Right, Or Other Basis Of Right, And/Or Who Claim A Right To Use Of Storage Space In The Subbasin; et al., Orange County Superior Court Case No. 37-2020-000057761 (the “Borrego Adjudication”) to determine 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 Borrego Adjudication was filed under California’s Comprehensive Groundwater Adjudication Statute (Code of Civil Procedure sections 830 et al.) which grants the court the power to declare the groundwater rights of all persons who pump or store groundwater in the Basin, including the priority, amount, purposes of use, extraction location, place of use of the water, and use of storage space in the basin, together with appropriate injunctive relief, subject to terms adopted by the court to implement a physical solution. (Civ. Proc. Code § 834.)

    1 The case was originally filed in San Diego Superior Court. It was transferred to Orange County Superior Court Judge Peter J. Wilson in June 2020.

  • Any person who holds fee simple ownership in a parcel in the Basin, or extracts or stores water in the Basin, may participate in the Borrego Adjudication. BWD has identified and will be serving the owners of real property overlying the Basin based upon information provided by the San Diego County Assessor. Based upon the information received, BWD has mailed, by registered mail or certified mail, return receipt requested, copies of the Complaint and the court approved Notice and Form Answer to all holders of fee title to real property in the Basin. BWD also caused the Notice to be published at least once per week for four consecutive weeks in the Uptown San Diego Examiner.

    A link to the Notice and Form Answer in available at the Important Documents section of this website.

  • Participation in the Borrego Adjudication will require you to produce information regarding your groundwater pumping in the Basin, if any. You must provide the following information by the date identified in the Notice in accordance with Code of Civil Procedure section 842(a):

    “Service of initial disclosure; included information; corrections

    (a) Except as otherwise stipulated by the parties or ordered by the court, within six months of appearing in a comprehensive adjudication, a party shall serve on the other parties and the special master, if one is appointed, an initial disclosure that includes all of the following information:

    (1)The name, address, telephone number, and email address of the party and, if applicable, the party's attorney.
    (2) The quantity of any groundwater extracted from the basin by the party and the method of measurement used by the party or the party's predecessor in interest for each of the previous 10 years preceding the filing of the complaint.
    (3) The type of water right or rights claimed by the party for the extraction of groundwater.
    (4) A general description of the purpose to which the groundwater has been put.
    (5) The location of each well or other source through which groundwater has been extracted.
    (6) The area in which the groundwater has been used.
    (7) Any claims for increased or future use of groundwater.
    (8) The quantity of any beneficial use of any alternative water use that the party claims as its use of groundwater under any applicable law, including, but not limited to, Section 1005.1, 1005.2, or 1005.4 of the Water Code.
    (9) Identification of all surface water rights and contracts that the party claims provides the basis for its water right claims in the comprehensive adjudication.
    (10) The quantity of any replenishment of water to the basin that augmented the basin's native water supply, resulting from the intentional storage of imported or non-native water in the basin, managed recharge of surface water, or return flows resulting from the use of imported water or non-native water on lands overlying the basin by the party, or the party's representative or agent, during each of the 10 calendar years immediately preceding the filing of the complaint.
    (11) The names, addresses, telephone numbers, and email addresses of all persons possessing information that supports the party's disclosures.
    (12) Any other facts that tend to prove the party's claimed water right.”

  • If you currently get your water from BWD, that won’t change. You will continue to get your water from the BWD, and you don’t need to appear in the Borrego Adjudication for BWD service to continue. The BWD is a pumper, so it will be regulated by the Stipulated Judgment described below if it is approved by the Court. 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 payments under the Stipulated Judgment.

  • Persons who claim rights to pump or store groundwater within the Basin, either now or in the future, may become a party to be lawsuit by filing an answer to the lawsuit on or before the deadline specified in the Notice approved by the Court. Persons may file an answer by completing the Form Answer approved by the Court, filing it with the Court, and sending a copy of the Form Answer to BWD or BWD's attorney. A link to the Notice and Form Answer is available at the Important Documents section of this website.

    Persons who hold fee simple ownership in a parcel in the Basin, or who extract or store water in the Basin, and have not received official notice may file an ex parte application to intervene in the case. Failing to participate in this lawsuit could have a significant adverse effect on any right that you may have to pump or store groundwater in the Basin.

  • A Case Management Conference in the Groundwater Adjudication will occur on November 20, 2020 at 9:00 a.m. in Department CX102 of the Orange County Superior Court. If you intend to participate in the Borrego Adjudication, you should attend the initial case management conference in person or have an attorney represent you at the initial case management conference.

  • 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”) which includes a proposed stipulated judgment (the “Stipulated Judgment”). The Stipulated Judgment 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 Basin and that establishes a physical solution for the Sustainable Groundwater Management for the Basin and comply with Article X, section 2 of the California Constitution.”

    The Comprehensive Adjudication Statute authorizes a court to approve a stipulated judgment that is supported by more than 50 percent of all parties who are groundwater extractors in the Basin or use the Basin for groundwater storage and are responsible for at least 75 percent of the groundwater extracted in the Basin during the five calendar years before the action was filed if the stipulated judgment meets all of the following criteria: (1) It is consistent with Section 2 of Article X of the California Constitution; (2) It is consistent with the water right priorities of all non-stipulating parties and any persons who have claims that are exempted in the basin; and (3) It treats all objecting parties and any persons who have claims that are exempted equitably as compared to the stipulating parties.

    Documents related to the Settlement Agreement and proposed Stipulated Judgment are available at the Important Documents section of this website.

  • The proposed Stipulated Judgment includes a Physical Solution that will be implemented over at least a 50-year time period to ensure that the Basin is operated within its Sustainable Yield, consistent with the California Sustainable Groundwater Management Act (SGMA). The Physical Solution for the Basin consists of the Stipulated Judgment, including the Groundwater Management Plan (GMP), the associated court documents, and adaptive management of the Basin over time, as overseen by the Court. The Physical Solution satisfies the substantive objectives of SGMA and serves as an alternative to a Groundwater Sustainability Plan. The proposed Stipulated Judgment and associated documents are subject to review and approval by the Court and by the California Department of Water Resources (DWR). The Stipulated Judgment will be administered by a Court-established “Watermaster” (see below), with input from a Technical Advisory Committee (“TAC”).

  • The Basin has been, and presently is, in a condition of long-term Overdraft for a period longer than ten years as described in California Code of Civil Procedure sections 832(d) and 847(a). The Stipulated Judgment establishes the initial “Sustainable Yield” of the Basin as 5,700 AFY which may be refined as determined by the Watermaster by January 1, 2025, and periodically updated thereafter, through the TAC processes. There is presently no viable means to cure the Basin’s Overdraft through artificial recharge or other supply augmentation strategy under current Basin conditions and cumulative average annual pumping quantities. As a result, it is necessary to implement the Physical Solution inclusive of a prescribed reduction in cumulative authorized pumping over time.

    The Physical Solution is intended to provide flexibility and adaptability to allow the Court to use existing and future technological, social, institutional, and economic options to maximize reasonable and beneficial water use in the Basin. The Physical Solution takes into consideration the unique physical and climatic conditions of the Basin, the use of water within the Basin, the character and rate of return flows, the character and extent of established uses, and the current lack of availability of imported water.

    The Stipulated Judgment assigns a Baseline Pumping Allocation (“BPA”) to specific identified parcels (“BPA Parcels”) based upon quantities calculated by the County of San Diego as part of the development of the Groundwater Sustainability Plan. The BPA proposed to be assigned to each BPA Parcel is set forth in the Stipulated Judgment at Exhibit 4. The BPA will be used to determine the maximum allowed pumping quantity allocated to the BPA Parcel(s) in any given Water Year (“Annual Allocation”). Pumpers will be allowed to pump up to their “Annual Allocation” and will pay pumping fees based on the amount of water pumped.

    Pumpers will be allowed to “carry over” water if they underpump in any given year, so long as they timely pay Watermaster assessments. A pumper’s carryover “account” can never exceed two times its BPA and any carryover must be the first water used in the following Water Year.

    Annual Allocations will be ramped down over time based upon the Sustainable Yield for the Basin. The Stipulated Judgement includes a provision requiring all pumpers to begin ramping down pumping starting on October 1, 2020. The rampdown rate is 5% per year for the first 5 years and faster than proposed under the GSP. The Rampdown will materially reduce pumping levels in the Basin year over year for the first 10-years. Further rampdowns will occur from 2030 to 2040 to reach sustainable yield pumping by 2040.

    Pumpers will be permitted to pump up to 120% of their Annual Allocation in Years 1 to 3, to allow for a “soft landing” provided that they underpump or purchase/lease water in Years 4 to 5 to make up for any over pumping in the first 3 years. All over pumping will be subject to an administrative penalty of at least $500 per acre foot, as set by the Watermaster, if not made up by underpumping or purchase/lease of make-up water.

     
  • BWD is proposed to be provided a BPA of 2,581 acre-feet per year (AFY). The Anza-Borrego Desert State Park will receive a fixed, non-reducible pumping allocation of 20 AFY to support its continued needs. Borrego Elementary School will receive a fixed, non-reducible allocation of 22 AFY to support its continued needs.

    New development will need to supply its own water / water rights / BPA, consistent with the BWD Developer’s Policy. BWD’s current pumping demands for existing customers are approximately 1,600 AFY affording the BWD a substantial cushion against the effects of rampdown over time.

  • The Watermaster will require each Pumper to file a report showing the total Pumping by such party for each reporting period rounded to the nearest tenth of an acre foot, and such additional information and supporting documentation as Watermaster may require. All non de minimis wells must have a new or existing meter to measure usage. The Watermaster will verify the correct installation and start meter reads on all wells no later than October 1, 2020.

  • BPA transfers within the Basin will be allowed, subject to certain restrictions outlined in the Stipulated Judgment. Permanent water rights transfers will require that minimum fallowing standards are satisfied, including destroying all agricultural tree crops; all fallowed land must be stabilized through mulching, planting cover crops and/or other dust abatement measures; all irrigation wells that will no longer be used must be properly abandoned or converted to monitoring wells; above-ground irrigation lines must be permanently removed; and all hazardous materials must be removed.

  • The interim Watermaster Board is continuing the water quality monitoring program that the BWD and County conducted as part of GSP development. This will continue unless and until the program is modified by the Watermaster with Technical Advisory Committee input.

  • The Court will retain “continuing jurisdiction” over the Judgment and oversee the administration and enforcement of the Judgment. To assist the Court in the administration of this Judgment, the Court will formally establish a Watermaster Board of Directors to administer and enforce on a day to day basis the provisions of the Stipulated Judgment and any subsequent instructions or orders of this Court. The Watermaster Board will be comprised of five members: (1) a BWD representative; (2) a County representative; (3) a community representative; (4) an agricultural representative; and (5) a recreational (golf course) representative. The Watermaster Board will oversee implementation of the Physical Solution and the Stipulated Judgment.

  • Watermaster overhead and other costs will be borne by pumpers who pump more than two acre-feet annually in proportion to their BPA. BWD’s BPA is about 10.6% of the total BPA. This figure compares with the much larger financial responsibility and potential liability that would have been shouldered by BWD ratepayers if BWD served as the groundwater sustainability agency for the Basin. The costs of filing and serving notice of the Stipulated Judgment have been split by the pumpers in the Basin.

  • The Watermaster will have a Technical Advisory Committee comprised of professional hydrogeologists, engineers, etc. Any party to the Judgment may appoint a qualified representative to the TAC, at that party’s sole cost. The TAC will be charged with making recommendations to the Watermaster Board regarding technical issues. TAC meetings will be open to the public, as described in the Judgment.

    The Watermaster has hired its own professional staff. The interim Watermaster Board hired Wildermuth Environmental Consulting as its Technical Consultant and Executive Director and Jim Markman of Richards, Watson & Gershon as its legal counsel.

    The Judgment also establishes an Environmental Working Group to advise the Watermaster on Groundwater Dependent Ecosystems (GDE) and related issues.

  • The BWD filed the court adjudication to seek the court’s adoption of the Stipulated Judgment in January of 2020. As of August 2020, the case is in the noticing phase in which all landowners overlying the Basin will receive notice of the litigation so that they can participate in the adjudication if they so choose.

    An interim Watermaster Board is currently holding public meetings, and the agendas and participation info can be found on the BWD’s website until the Watermaster establishes its own website. The interim Watermaster Board has assumed responsibility for the sustainable management of the Basin. Metering of pumping and limitations on pumping pursuant to the Stipulated Judgment’s terms will begin on October 1, 2020. The BWD GSA will remain in abeyance until the Court enters the final Judgment, at which time the GSA will be dissolved. The BWD also filed the Stipulated Judgment with the California Department of Water Resources in January of 2020 for review as a GSP alternative under SGMA.

    While the Court case is pending, the stipulating parties intend to ask the Court to issue orders to ensure the terms of the Stipulated Judgment are followed by all pumpers before the final Judgment is entered by the Court.

For More Information

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Mail

Borrego Springs Subbasin Groundwater Adjudication
c/o JND Legal Administration
PO Box 91381
Seattle, WA 98111