Point of View Stipulated Judgment vs. Groundwater Management Plan
Last updated 2/20/2020 at 11:28am
As a California Certified Hydrogeologist, I have been working on the Borrego Valley groundwater resources since 1981 when I joined the County of San Diego as the County Hydrogeologist. The question of a groundwater overdraft in the Valley was subject to intense debate, although the groundwater data collected in the monitoring program clearly documented steady decreasing water levels throughout the aquifer. Over the years the debate slowly turned from “Do we have an overdraft?” to “What do we do about it?”
This discourse was finally brought to a head with the passing of the Sustainable Groundwater Management Act (SGMA) in 2014. The Act requires the identification and mitigation for over drafted basins (such as Borrego Valley) and that they be brought into a sustainable basis to ensure a reliable long-term water supply. As a result of this Act, the Borrego Water District working with the County of San Diego and its consultants completed work on establishing a draft Groundwater Sustainability Plan (GSP) in fulfillment of the requirements of the SGMA.
However, it was well known that there were significant legal limitations within the SGMA program. Specifically, the State Legislature-approved Act did not address the very thorny issue of California water rights. As provided in the Real Property Law Reporter January 2015: “The act proclaims in several places that it does not authorize local GSA or the State Board to determine groundwater rights. These provisions preserve the ability of landowners and groundwater users to challenge plans as inconsistent with those rights,” and
“The Act casts a cloud of uncertainty over future groundwater rights and supplies, because groundwater rights holders do not yet know whether or how a GSA will regulate them to achieve sustainability.”
As a result, the process as stipulated within the SGMA does not provide direct legal means to assign water rights and/or solve an overdraft condition.
While the GSP was being constructed, a confidential yet parallel process was being completed with discussions between the major groundwater extractors in the basin. This effort (to arrive at a Stipulated Judgement) was led by the Borrego Water District and included representatives of the agricultural and recreational users. As a result of these negotiations, representatives at the table agreed to jointly decrease groundwater extraction by almost 75%. This agreement is enforceable and allows for the correction of the overdraft since it addresses the legal enforcement of water rights within the basin.
Significant implementation measures are still needed to be completed the Stipulated Judgment; however, this path will provide for a means to establish a physical solution to the overdraft condition in the community, namely the GSP itself, which is substituted by a name change and very minor edits into the Groundwater Management Plan (GMP).
In summary, it is my opinion the SGMA was a positive exercise. However a GSP overseen by a new County-led agency would not have solved our problem due to the limitations of determining water allocation and water rights. The parallel process initiated by the Borrego Water District and including the major agricultural and recreational pumper resulted in a jointly agreeable solution (Stipulated Judgment).
This agreement is enforceable within the Superior Court using a well-established system, with a Water Master and representative committees, including a member of our community. This process, in my opinion, can finally make a difference in solving our groundwater overdraft. As Mark Twain is quoted as saying “Whiskey is for drinking. Water is for fighting for”. Maybe with this new draft agreement we can stop the fighting.