WaterMaster Board Report: Environmental Appointments and Transparency – Again


Last updated 1/26/2021 at 12:32pm

Opinion: Let’s Be Honest

I am stumped. I don’t know what to do, Borrego Springs residents. Should I abandon these reports since my background knowledge of the evolution of the Stipulated Judgement and the WaterMaster Board is not serving to inform the WMB when they stray from agreed upon public transparency? How would I really know if they stray anyway if there is no understanding that they must not stray? I write these reports to keep the public in the loop on what is happening in terms of management of the water that is the life blood of the community. Would anyone else like to step in and pick up the task since the Chair has rudely made it clear that he won’t respond to a serious inquiry from me at a public meeting and no one present objected to that? If so, please be in touch with me. Here’s what happened.

I’ve watched past discussion of plans to bring water use in our basin into conformity with state law move away from the public process the state law anticipated and into a private negotiation that ensured management by those who have overused our water over the years, with some important concessions. Those concessions were important and included a seat on the WMB for a community representative, a seat for the County, and that the WMB follow sunshine/transparency provisions for public meetings that usually apply only to California city and county agencies, boards and councils – the Brown Act.

In this case, the Brown Act provisions would apply due to a court overseen agreement or contract, the Stipulation Agreement or Judgement to govern the use of water in our basin. I and others didn’t want to move away from the public process, but we gave way and embraced the negotiated settlement as best we could.

As I wrote in an email to WMB Counsel Jim Markman after the December meeting in which he said that the Brown Act provisions were unenforceable for the WMB, “As a member of the public and former member of the GSP Advisory Committee, it was painful to have the public process abandoned for a privately negotiated process, but one of the concessions to that public process was the Brown Act provisions in the Stipulated Judgment. I’ve noticed the tendency for the WMB to refer to Brown Act adherence as voluntary as if the Stipulated Judgment didn’t address this at all.” And as I reported in my last WMB meeting report, the Stipulated Judgement provisions use language that is intended to make the Brown Act adherence mandatory, not voluntary, although certainly the folks who signed the Judgement signed it voluntarily.

I also wrote in the same email to Markman: “I hope this gets clarified at the next meeting so that all members and the public understand that compliance with the Brown Act is written into the Stipulated Judgment and is not simply a matter of voluntary adherence. I do get your point that until the Judgment is entered by the court, which could take some time, any enforcement is unlikely because it would require an unusual action to make that happen, but still, that is not the same as unenforceable. “ As anyone who has asked about Brown Act enforcement has heard, even when enforced by a local District Attorney, enforcement is unusual. Yet all of us who fall under this state law follow it because it is mandatory to do so. For the WMB, enforcement would be made by the court instead of by a local DA, but that doesn’t change the terms of the Stipulated Agreement, in which mandatory language is used for following the public meeting provisions of the Brown Act.

Voluntary or mandatory – the distinction matters. When adhering to the Brown Act comes up at these meetings, there is something strange about being told (in effect) not to sweat the details because the WMB is voluntarily following the Brown Act meeting provisions and they are not enforceable. As far as I know, those provisions have mostly been followed by the WMB. But how far will this proclaimed “voluntary” goodwill go when issues get tough? Why is it so very difficult to simply state that it is now mandatory to follow these public meeting provisions?

Those of us who follow Brown Act provisions for meetings don’t always enjoy following them, but we do so because transparency to the public is important and because we must. Sometimes it means getting to a decision is more laborious than we might wish. Voluntarily doing something implies that the consent can be withdrawn. When something is mandated, we must do it.

And yet, there was no such announcement to clarify the understanding of the public and WMB members about this point. Counsel Markman said, when asked at the January 14 WMB meeting, that he hadn’t sent an email to WMB directors and didn’t think a statement at the meeting was necessary. Chair Duncan stopped me from asking more about this at the meeting, talked over me, and again referred to Brown Act adherence as voluntary, even though he had been included in the emails in which Markman wrote otherwise.

Earlier in the meeting, Director Smith had commented when making a motion to approve four applicants to the Environmental Working Group that left out a fifth applicant who two other Directors had spoken in favor of approving, that the fifth applicant would introduce an element of negativity. I understood that to reference previous support by that applicant for a continuation of the public process in favor of the private process that resulted in the Stipulated Agreement.

How disheartening it is when public transparency for meetings had both been agreed to and is actually mandated by the Stipulated Judgement, to have clarification of that point in public be a matter for censorship and temper by the WMB Chair. Also disheartening is that wanting a public process in the past becomes a matter for holding a grievance in the present by a WMB Director.

WMB Business

The WMB approved the following four of six applicants for its Environmental Working Group (EWG): Jim Dice, Danny McCamish, John Peterson, and Dr. Michael Wells. The two applicants not approved are David Garmon and Jim Engelke. More information about applicants can be found on pp. 32 – 44 of the WMB Agenda Packet for the January 14 meeting, which can be found at https://borregospringswatermaster.com. The inaugural meeting of the EWG will be in February, date to be announced.

ED Adams reported that a few more pumpers have sent checks in but five pumpers have not yet paid the first installment of their contributions to the WMB, which are based on baseline pumping allocations. The second payment installments are due March 1. She was asked what percentage of revenue these five pumpers represent and said she would send an email to WMB Directors once she calculates this. As of December 70% of assessments had been paid.

A discussion was had about the conversion of BWD water credits to Baseline Pumping Allocations (BPAs), and there are six water credit holders whose credit conversions are held up because they haven’t fulfilled the requirement to properly shut down abandoned wells.

ED Adams proposed sending a letter to these water credit holders advising them to satisfy this requirement or to convert the wells to monitoring wells. See Board Packet, pp 48 – 50 for the list of pumpers and requirements fulfilled. It is a WMB responsibility to make sure all requirements are fulfilled prior to conversion of credits to BPAs.

Trey Driscoll agreed to provide a letter saying that based on Dudek’s previous work, there are nine credit holders who have fulfilled all five requirements, and a letter will be sent by the ED to those who still need to fulfill requirements, advising them of that fact.

The ED also reported that December water meter self-reporting of water pumped went well with some exceptions, and she hopes to resolve the issues with the pumpers whose self-reported numbers were not available and couldn’t be determined by the ED because telemetry keys had not been provided.

There will be a conference in February and a hearing in March with the Orange County Judge overseeing the Borrego Basin Adjudication, and any member of the public wishing to listen in can do so. Instructions can be found on the home page at https://www.borregowaterlawsuit.com.

Upcoming WMB Regular Meetings conducted online are scheduled for February 11 and March 11 at 4:30 p.m.

To receive an agenda and packet via email, send a request to be put on the WMB email list to BorregoSpringsWM@westyost.com.

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