Groundwater mitigation:  One Step Forward, Two Steps Back?

The article “Aquifer-recharge Concept OK'd . . .” (Borrego Sun, 11 August 2005, page 3) states that BWD “directors . . . approved the concept” that “storm runoff from Coyote Canyon would be captured and used to recharge Borrego’s overdrafted aquifer.”

Minutes of the BWD Board meeting on 27 July 2005 explain the Board's action as follows:

"Mr. Engelke explained the benefits of the Aquifer Recharge Program . . . and that in order for the project to begin [developers] needed the conceptual approval of the BWD Board.  A lengthy discussion was held in regards to the capacity & maintenance of the recharge basins, the ownership of the water flowing into and out of the basin and the benefit/liability to the BWD."  The Board voted four to one "to conceptually approve the continued testing of the Aquifer Recharge Program . . . If the program is found to satisfy District requirements it could be an eligible method to satisfy 3-1 ratio for groundwater preservation.  Per discussions this Board action is for a limited approval of continued recharge testing, and not a preliminary approval of the proposed subdivision."

But what does all of that mean?

“Concept” means “a general notion, idea, or thought,” a pretty squishy definition.   In this case there is no indication that anything more specific is intended or that the “concept” is proven.

Indeed, Director Mendenhall remarked that he “would like to see if [the concept] works.”  The BWD’s consulting engineer cautioned that “a lot of years no water comes down . . . Coyote Canyon.”  BWD counsel noted that “BWD policy . . . does not specify recharge as an alternative” for meeting the mitigation requirement.  The "concept" was approved, or alternatively "conceptual approval" was granted,  anyway. 

 There are at least three ways of interpreting the Board’s opaque language:

• They may have intended that the developer go ahead with the project at his own risk, subject to meeting benchmarks proving that the “concept” will satisfy mitigation requirements; i.e., conditional approval.  If so, they acted prudently.
• They may have knowingly accepted the “concept” uncritically and without further proof of efficacy.  If so, they acted irresponsibly.
• They may simply not have known what they were doing.  If so, they acted irresponsibly, are running true to form, and have created another regulatory limbo.

There is not a word anywhere to help anyone understand what "conceptual approval" means.  The reported "lengthy discussion" focused entirely on superficial matters and does not appear to have addressed anything that provides even an inkling of what  "conceptual approval" means.  The Board apparently did not lay out any criteria by which to determine whether the "program" satisfies "District Requirements" or even what those might be.  By their own admission, all they did was to grant "limited approval of continued recharge testing" which the applicant could have done without ever involving the Board.  That is not the same thing as approving "the concept” that “storm runoff from Coyote Canyon would be captured and used to recharge Borrego’s overdrafted aquifer” as reported, probably correctly, in the Borrego Sun.  In a word, it is impossible to make sense of the Board’s action.

By far the most likely interpretation of the Board’s muddled account of its action is that their thinking was equally muddled and they truly did not know what they were doing, or what they have done.  Director Jones cast the only vote against "approval of the concept" because of this fatal ambiguity and his singular insistence on precision and clarity are to be commended.

It is unfathomable how the Board could, nearly simultaneously, approve a mitigation policy and an unproven “concept” that, by any definition, flies in the face of that policy without batting an eye.  But wait – this is Borrego.