VIEWPOINT: "Water Conundrum"
Last updated 1/11/2019 at 9:42am
By Ray Shindler
If you think this is complicated, you would be right. 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, have 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. 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 Rams 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. 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 20 million dollars or more, for those purchases.
Full article in the Jan. 10 issue of the Borrego Sun.