Scary Certified Letter Arrives
Last updated 10/8/2020 at 2:19pm
What to do, or think when you receive an official certified letter from the Orange County Superior Court in your mailbox. Before calling an attorney to explain and spending money needlessly, the Borrego Sun has some recommendations. Take a deep breath and a deep dive into the complexities of resolving underground water conservation in the Borrego Valley Basin.
Disregard the letter, if you think, or are certain that you approve of the Borrego Groundwater Sustainability plan, have done homework online about the plan, read the plan, gone to the public meetings, or followed reports in the Borrego Sun, including the most recent WaterMaster Board’s Report, regarding the progress and process of addressing the complex and complicated problem facing Borrego’s underground water usage. Or if you trust the stakeholders that represent your groundwater usage such as the Borrego Water District, or 90.4 percent of the other largest operators of wells dependent on underground water, then throw the letter in the trash. Nothing is required.
Not sure you know enough, or are uncertain about what to think about the plan, or what it means for you as a home or business owner. If you are concerned about things you have heard, and are concerned about what the letter means or what it means by filing a claim, then it’s time to do some homework.
Before calling an attorney, who will, likely, charge you to read the plan, maybe explain it incorrectly, do your own fact finding. There is a trove of information on line offered by different groups and organizations about the plan, including the official site at e-mail info@BorregoWaterLawsuit.com. Geoff Poole will answer specific questions, via email Geoff@borregowd.org, or a call to the Borrego Water District Office.
The serious problem facing the agreement’s partners and contributors has been, not just conserving water for future generations, but how to meet California’s mandate that all groundwater usage (in Borrego and designated subbasins throughout the state) must balance the amount of water drawn from groundwater sources with an equal amount replaced or recharged by 2040. The state has imposed time frames, goals, and serious fines, including, taking over management of the groundwater basin to ensure compliance.
For the Borrego Valley and Basin as defined by the state, this means a 75 percent reduction in water use by 2040, and/or finding ways to supplement the underground water storage. This is uniquely difficult for Borrego Springs, since there are no alternatives sources such as piping in stored surface water, as found in most other basins and water districts. It’s also difficult to agree which large well users (called Pumpers), like the Borrego Water District with all its consumers (considered one major pumper), and commercial growers, and wells drawing more than 2-acre feet annually, will take what percentages of reductions, given the consequences of such a drastic reduction. See the plan for answers.
If you are in this group, the letter is a wake-up call to get the facts. Either way, calling an expensive attorney to read up on and explain the deal to you is an option. A better one, is forget about the letter until you have more information and have done your own research. Talk to people you trust. People, who have followed the process and progress of the “plan.” (Now called “Stipulation”). This way you can come to your own conclusions and decide if you have cause to file a claim. This is provided for in the letter, via an official claim, challenging the Stipulated Agreement. Or withhold judgement to hear the pros and cons at the Court’s Settlement Conference.
The Settlement Conference before the Judge is scheduled for Nov. 20, 2020, location yet to be determined.
A settlement conference is a meeting between opposing sides of a lawsuit at which the parties attempt to reach a mutually agreeable resolution of their disputes. Such a conference may be initiated through either party, usually by the conveyance of a settlement offer. In this case, the settlement offer is to grant the Borrego Groundwater Plan/Stipulated Agreement authority manage and conserve groundwater use over the next 20 years.
The Borrego Plan calls for the courts, rather than the state to “adjudicate,” approve, manage, and implement the plan.
Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision which determines rights and obligations between the parties involved.
Just generally grumpy, or unhappy about how the pandemic has upended normal life, or if you don’t trust politicians, politics, or believe the government has no authority over private property or water rights, don’t file a complaint. The issue of water and property rights has been settled, and California has the right to regulate underground water use.
Think of surface water – reservoirs, rivers, and lakes, as a bank account. Underground water is the savings account. In California, the bank account is in trouble, in the red, due to prolonged droughts, climate change, and other competing water issues. The savings account has also depleted by over 50 percent. Sufficient water to restore the account without help from the climate, which is unlikely in the future, according to scientists, has been declared a formula for bankruptcy.
Filing a frivolous claim that does not address specific issues or elements of the agreement with a factual and even legal standing is unfair to the people sincerely trying to solve a very quixotic problem. People, like the Signatories to the agreement, BWD, other major pumpers, and County of San Diego, that have spent years, time and money with consultants, attorneys, experts, tests, and more, to attempt to reach what they believe to be the best and fairest approach to protect Borrego’s future water supply, deserve respect, regardless of any issue you may have with the circumstances. Plus, it’s a waste of the Court’s time and community efforts to find a mutually acceptable solution. A solution which will require sacrifices and serious continued efforts to reasonably, reduce usage and recharge the underground water sources in the next 10 to 20 years.
Keep in mind, none of the regulations from metering to drilling a well, apply to properties drawing 2-acre feet of water or less. This comes directly from SGMA. Two-acre feet translates to 650,000 gallons of water. At the BWD Tier 7, it is enough water for 100 homes.
Finally, done the homework, and believe that you have a legitimate challenge to the agreement, on issues, like the reality of meeting goals within the specified time frames, or proposed future solutions to recharging the underground sources, then fill out the place in the letter to file a claim. That’s not only your right, but responsibility. The reason to have an attorney representing you, is because Settlement Conferences are typically the playground of lawyers on retainers, making legal challenges on behalf of clients.
Quick background summary: The Borrego Water District lawsuit was filed under the California Code of Civil Procedure to enable the Superior Court to determine all rights to pump or store groundwater in the Borrego Springs Groundwater Subbasin. The State Department of Water Resources has determined this basin to be critically over-drafted, endangering its long-term sustainability. Under the Sustainable Groundwater Management Act of 2014 (SGMA), withdrawals of groundwater from the basin must be equal to replenishment by 2040.
BWD has filed a complaint asking for comprehensive adjudication of the basin, meaning groundwater rights will be determined by the Court. Major pumpers in the basin, notably BWD, agriculture and recreation, have entered into a written settlement agreement to establish the terms and process for their stipulation to a judgment by the Court to determine groundwater rights. The Stipulated Judgment includes a Groundwater Management Plan, also known as the “physical solution,” which is essentially the original Groundwater Sustainability Plan developed by BWD and the County in response to the requirements of SGMA.
Under California law, BWD was required to give notice of the lawsuit to all landowners within the basin. Landowners do not have to participate in or respond to the lawsuit unless they object to the terms of the Stipulated Judgment, and if they pump less than two acre-feet per year (approximately 655,000 gallons), they are not generally affected by the requirements of SGMA or the Stipulation. For more information, call 1-833-674-0177 or e-mail info@BorregoWaterLawsuit.com.