The Urgent Need for Action by the Borrego Water District Board

To

Prevent Depletion of the Borrego Valley Aquifer

25 October 2004

Introduction

The following observations, comments and suggestions are submitted for consideration by the Borrego Water District (BWD) ad hoc/standing committee on groundwater.

What follows is a conflation of a letter to the BWD Board dated 31  October 2003, and another document with the same title as this one presented to the BWD Board in April 2004, edited, augmented and updated as necessary. The Board never addressed either of these two documents or the issues raised in them. They are being resubmitted to the ad hoc/standing committee on groundwater now in hopes that they will finally receive a full and fair hearing and for incorporation into the revised groundwater management plan.

Brief History of Recent Efforts to Resolve the BorregoValley Aquifer Overdraft

On 22  January 2003 the Borrego Water District held its First Annual Groundwater Management Update Meeting.  The action items from that meeting were:[2]

Creating and funding an entity to apply for funds to acquire water rights. Create a committee to investigate sources of water outside the Valley. Work with the County and BSCSG to assure that all new heavy water use projects in the Valley are subject to environmental review

On 25  September 2002, the Borrego Water District (BWD) Board of Directors adopted the "Borrego Water District Groundwater Management Plan."[1]

Now, more than18 months later, nothing has come of any of these.

As the undated BWD document "Status of Work to Resolve Groundwater Overdraft,"[3] published during the summer of 2003, makes abundantly clear, no measurable progress was made on reducing the overdraft in the year that elapsed since the Groundwater Management Plan (GWMP) was adopted.Specifically:

"Find Additional Sources of Water"[4] and "Voluntary Reductions in Water Use,"[5] have gone nowhere

"Work with CountyGovernment to Get Regulations [to curtail  groundwater use] . . ."[6] has an especially dismal and discouraging record

County General Plan 20/20:    The General Plan has been under review/revision for over six years.Thus far, it contains no new provisions to regulate groundwater use or conversion of land to agriculture.A revised version of the Plan was recently estimated to be at least two years off with no assurance that it will be completed even then or, if completed, that it will contain language to regulate new agriculture or groundwater use in the Valley.

CountyGrading and Clearing Ordinance:   A draft revision of this ordinance is patently inadequate to regulate and reduce conversion of land in the Valley to agriculture.Moreover the Dept. of Planning and Land Use (DPLU) is lax in requiring environmental reviews for grading and clearing permits, regularly issues pro forma"Negative Declarations" and is reluctant to act on violations in the Valley even when they are reported to them. To make matters worse, in June 2004, the DPLU Code Enforcement Division was forced to reduce staff due to "severe" budget cuts resulting in reduction or elimination of certain code enforcement services.[7]

CountyGroundwater Ordinance: The Borrego Valley is specifically exempt from the present ordinance.DPLU argues, perversely, that Borrego cannot be included in the revision currently underway because the ordinance sets residential densities based on annual rainfall and Borrego does not receive sufficient rainfall.

Special ordinance(s) to regulate land and groundwater use in the Borrego Valley:  At a Planning Commission meeting in January 2003, the Commission considered the issue of groundwater in the Borrego Valley, and recommended that the County Board direct DPLU to assign staff to study the problem and propose solutions for it.The Director of DPLU then asked for a committee of "stakeholders" to advise staff assigned to the project.  Nearly two years have passed since that Planning Commission meeting.  No members of the "stakeholder committee" have been appointed, no progress whatsoever has been made at the county level on resolving Borrego"s groundwater problem and there is no timetable for doing so. Moreover, the county hydrogelogist has recently resigned, ensuring that no progress will be made in the indefinite future.

Despite recent claims to have "worked with county staff," there is no evidence that the BWD Board has made any systematic efforts to even monitor, never mind influence, the above ordinances and regulations or other, similar measures, if any.

Moreover, the Fifth District Supervisor is openly hostile to any regulation of agriculture by the County, fundamentally and adamantly opposed to County involvement in managing groundwater, and not amenable to reasoned argument on these matters. Left to its own devices, therefore, the County is unlikely in the extreme to voluntarily regulate either agriculture or groundwater use in any meaningful way.

"Economic Incentives to Reduce Municipal Use,"[8] remains unexamined and untried

A purchase and fallow program for agricultural land currently in production,[9] notwithstanding some perfunctory and superficial discussion of it, remains essentially unexamined, untried and unfunded

Thus the easy, cheap, and uncontroversial programs for dealing with the overdraft have proven ineffective or failed outright.The putatively difficult, possibly controversial and presumably expensive programs have been ignored and assiduously avoided. We are where we were over two years ago when the GWMP was adopted.

Recommendations regarding the above:

Remove "Find Additional Sources of Water" and "Voluntary Reductions in Water Use" from further consideration.

Replace "Work with County Government to Get Regulations [to curtail groundwater use] . . ." with very specific goals as detailed above for each of the following:

County General Plan 20/20 County Grading and Clearing Ordinance CountyGroundwater Ordinance Special ordinance(s) to regulate land and groundwater use in the BorregoValle

Recommendations for Other Action:

Time is of the essence.With each day that passes any solution becomes more difficult, more expensive and less possible.The BWD Board must take bold, immediate, effective and measurable action to achieve specific groundwater management goals.

Immediately

With respect to the monitor well project the ad hoc/standing committee on groundwater must, as soon as possible, address at least the following questions:

Where are the hundreds of core samples taken as the well was being built? What use is/will be made of them? What, if any, written reports were/will be produced

By whom? Where? When? At what additional cost, if any

How will information derived from the project be used

By whom? At what additional cost, if any

How will the costs of all of the above be shared equitably by all beneficiaries

Near Term

Among initiatives that the Board should take as soon as possible (within ninety days) are the following:

Institute a "Water Stand-by" fee for all vacant land within the BWD: One way to broaden the base of contributors to groundwater management, as Director Sorenson has called for, is a "stand-by" fee levied on owners of vacant land in the BWD.  Such a fee for groundwater management is easily justified on the theory that without available water the value of their property would quickly approach zero.  A stand-by fee would help to ensure that all beneficiaries of groundwater management also contribute to it in some measure and provide a modest revenue source to underwrite the District's groundwater management efforts.

The BWD has an opinion from counsel dated 15  June 2004, in which counsel suggests that the BWD consider ". . . a water standby charge levied on all undeveloped lands within the District" (page eight).Counsels justification for the fee reads in pertinent part ". . . the District by undertaking a groundwater management program is making water available for the future development of lands in the district and therefore, a water standby charge to help fund the groundwater management program would seem to be appropriate" (page nine).

Impose A Groundwater Mitigation Fee On All New Construction In The BWD: Funds obtained from such a fee to be reserved exclusively for groundwater management and conservation or matters demonstrably related directly and immediately thereto. The fee to be set at such a level that for each dwelling unit or other significant structure erected, the mitigation fee would be, at a minimum, sufficient to purchase and retire not less than one-half acre of land currently in agricultural production.

Impose Tiered Water Rates On All Users In The BWD Service Area.  Rates to be structured so that users who consume no more than the "median household amount" (mha) based on data for the previous calendar year would pay only the base rate.  Users who consume:

101% and 110% of the mha would pay a 10% surcharge

111% and 125% of the mha would pay a 20% surcharge

126% and 150% of the mha would pay a 30% surcharge

151% and 175% of the mha would pay a 50% surcharge

176% and 199% of the mha would pay a 75% surcharge

200% or more of the mha would pay a 100% surcharge

on the sum of charges for water use and groundwater management.

N.B.Tiered water rates for rate payers should not be imposed unless and until measures are in place to insure that all of those who draw water from the aquifer pay their fair share of the high and rising costs of groundwater management. To do otherwise would be to add insult to injury since District rate payers have borne 100% of these costs up until now to fix a problem not of their making.

Voluntary reductions in water use are manifestly ineffective.Tiered water rates provide an economic incentive to conserve water as well as additional funds to be used exclusively for groundwater management and conservation or matters demonstrably, directly and immediately related thereto.

Put the County on notice of its responsibility for the overdraft:  The County has been warned repeatedly of the overdraft and the situation has been common knowledge for over 20 years. The County has ignored the overdraft and continued issuing building permits for us to build houses and occupy the Valley.   In so doing, they may implicitly warrant, and assume a fiduciary duty to ensure, that residents will have water.Under this theory, CountyOfficers may be found negligent and liable for damages caused by a foreseeable and catastrophic failure of our only water supply.The BWD Board should ask qualified Counsel for a written opinion on this theory and, if sound, write a letter to the San Diego County Board of Supervisors as soon as possible putting them on notice of this potential liability. County government might be encouraged thereby to work with the BWD to regulate and curtail water use in the Valley.If not, the BWD should consider legal action to enforce the County?s fiduciary duty to residents of the Valley if appropriate.

Exploit the recently purchased database of grant opportunities:  In a document entitled "BWD Groundwater Actions Taken" distributed to members of the ad hoc/standing committee on groundwater in October 2004, the Board claims credit for purchasing "a Grant Research Program."  This presumably refers to a database of grant opportunities, access to which was purchased during the summer of 2004 for approximately $3,500/yr.There have been no reports of activity involving this database or applications for grants as a result of such activity, if any.

The mere act of purchasing access to such a database means nothing. Unless it is put to productive use it is a waste of rate-payers money.The Board apparently has no plan for exploiting the database and has not done so.If the Board cannot or does not wish to do so, and still wishes to pursue grant opportunities, it would be far more cost effective to contract with a grant writing service with access to this and other data bases to research and write appropriate grants.Whether the Board chooses to continue subscribing to the database itself or outsource such work, it will have to develop a plan for paying for grant research and writing and a means of funding such work that is fair and equitable to all beneficiaries. The Board must come up with a plan to do so as soon as possible.

The above represent only the minimum required of the BWD and are intended as actions that the Board can and should take forthwith.  They are necessary, but by no means sufficient, to deal with the growing groundwater crisis in the Valley.  They are only a beginning; but they are at least that.

Intermediate/Long Term

In addition to and concurrent with the foregoing, the BWD should adopt and implement the following within the next two years:

Bring legal action against the County to enforce specific performance:  In each and every case wherein the Department of Planning and Land Use (DPLU) issues a "Negative Declaration" without sufficient cause, the BWD must formally challenge the declaration and, if DPLU does not show cause for the declaration or require adequate environmental review for a project, bring legal action to force them to do so.  Although he BWD would have to act as lead plaintiff in any legal action, the District should cooperate closely with the Borrego Springs Community Sponsor Group in this.

Address the BorregoValley's unique situation in new or revised ordinances.

Ensure that Borrego is included in the revised Groundwater Ordinance just as other unincorporated areas of the County already are

Ensure that the revised Grading and Clearing ordinance contains language requiring a discretionary permit for conversion of land to agriculture including, without qualification, all lands fallowed for five years or more.Conversion of land in the valley by right must end immediately as a  precondition for ending the overdraft and saving our sole source aquifer

Lobby for an ordinance that would require a special discretionary permit and an environmental impact report  for any and all projects or activities in the Valley that would or may require five or more acre feet of water per year as recommended by John Peterson, former San Diego County Hydrogeologist.

The BWD should cooperate closely with the Borrego Springs Community Sponsor Group in this effort as well.  Given the obvious reluctance of the Fifth District Supervisor to regulate groundwater and agriculture, the BWD may find legal action necessary to achieve some of these ends also.

Very Long Term

Conjunctive Use: Recently, "conjunctive use" has become the buzzword in discussions about the aquifer and the overdraft.  It is being touted as a panacea. Conjunctive use is a conceivable long-term solution to the overdraft that deserves consideration.  It is also, at this point, pie in the sky bye and bye.

We are a very long way from actually injecting or percolating imported water into our aquifer.  Looking at the water transfer deal arrived at between the Imperial Irrigation District and the San Diego Water Authority, it is clear what lies ahead should this solution be pursued.  The IID/SDWA deal took many years of intense negotiation, bitter litigation, huge amounts of money, political influence, and, finally, the direct intervention of Sacramento before it was concluded.  Building the required infrastructure to support conjunctive use would face an additional and heretofore insurmountable hurdle that the IID/SDWA deal did not; namely, obtaining rights of way over State Park property.

The mere possibility of perhaps achieving this best of all possible worlds at some point in the indefinite future in no way diminishes the urgent need for meaningful action and conservation now to reduce the overdraft.Immediate steps to ensure that we live within our very modest and fast-shrinking means unless and until we are able to import water should have the highest priority.  While conjunctive use is deserving of study, it a long-shot at best.  The two articles cited below[10] are but samples of a huge and growing body of literature demonstrating that to put our faith entirely in such a highly speculative, remote and intuitively unlikely prospect would be irresponsible and foolhardy in the extreme.  For the BWD Board to do so at this juncture would amount to misfeasance.  We must take action now to reduce demand on the aquifer while we await the millennium - which may never come.

Moreover, there will necessarily be huge costs incurred in pursuing this option even assuming that large grants, etc., are available to defray part of the cost.  The BWD Board of Directors has shown itself to be extremely averse to dealing with the question of equity in bearing such costs - if, indeed, a small District such as the BWD can do so at all.  This question must be addressed and answered before seriously considering this optio

Need for Agreement On Baseline Data

If the aquifer were a lake there would be no question about the severity of the overdraft for it would be visible to all and indisputable.  Unfortunately, it is not.  We must, therefore, rely on scientific data to create a theoretical construct to represent the aquifer and craft a solution to the overdraft based on that - and there's the rub.

To facilitate timely and effective ground water management, there is a clear and urgent need for data that is acceptable by all parties as a basis for action.It doesn't have to be perfect - indeed, it will never be - just good enough to support decisions about mitigation of the overdraft.  Such data already exists.

John Peterson., the former County of San Diego Hydrogeologist, who spent a good part of his working life - more than 22 years - monitoring falling groundwater levels in the Valley and had no axes to grind, has said repeatedly "We don't need any more studies of the aquifer.What we need to do is figure out what to do about the problem we know we have."  Thus the question of whether there is a need for "more data" is clearly a matter of opinion.

In an attempt to reach agreement on an acceptable data set, the BWD convened a Technical Workshop on 18 February 2004.All interested parties were invited to attend and were represented in the meeting including Thomas Henderson[11] and Steven Netto[12], who, in 2001, completed two complimentary masters' theses on the BorregoValley aquifer.  Henderson's thesis was, in fact, a computer simulation model of the BorregoValley aquifer.

According to the U. S. Geological Survey, computer simulation models play an ever increasing role in evaluating alternative approaches to ground-water management.Such models attempt to represent the essential features of a ground-water system, e.g., our aquifer, mathematically based on a defined set of conditions and often provide the best information available to support groundwater management decisions. Computer simulation models themselves, as well as model forecasts, can be updated when significant new information about the ground water system becomes available;[13] e.g., AAWARE's agricultural water use study, data from the new monitor wells drilled with a grant from the state, water quality data, etc.

The BWD Technical Workshop was a potentially significant event in the effort to stanch the overdraft of our aquifer.  Every one agreed to acquire the rights to use Henderson's model of the aquifer and incorporate additional data as, when and if it becomes available.In simple terms, that seemed to mean that we could finally stop quibbling and get on with fixing the problem. Unfortunately, that apparent agreement proved illusory and short lived.

Nonetheless, in June/July 2004, the BWD purchased the Henderson/Netto groundwater model.  With respect to the Henderso/Netto ground water model the ad hoc/standing committee on groundwater must, as soon as possible, address and resolve at least the following questions:

Where does/will the model reside? Under whose control? How will it be employed? Who will have authority to decide on projects to which the model will be applied? How will priorities for its use be set? What additional costs, if any, will be incurred? How will the costs of all of the above be shared equitably by all beneficiaries

The BWD should immediately retain the services of a qualified individual, agency, organization or other entity, to certify, host, maintain, run, modify as necessary and interpret the results of applying the computer model to the Borrego basin.The entity selected must be such that all parties can rely on its/their expertise, independence, impartiality and objectivity; and one that both has the capability and is contractually obligated to carry out the above tasks and duties and develop updated, more complete and accurate conceptualizations of and water budgets for the aquifer in a timely manner as new information becomes available.  Finally, in order to justify and capitalize on this expenditure, it is imperative that the BWD secure written agreement among all interested parties that each will accept both the model itself and forecasts and projections made by the model as valid.

Equitable Cost Sharing

Underlying and fundamental to all of the above is the assumption that all parties who draw water from the BorregoValley aquifer will share the costs involved in all groundwater management and mitigation efforts according to their contributions to the overdraft.  It is manifestly unfair for the rate payers of the District to go on bearing the entire cost of fixing a problem not of their making, as they have been doing, when they bear at most ten per cent of the responsibility for it.  The Board must find the courage to address the question of equity in this regard before implementing more, costly measures to deal with the ever more serious overdraft; and they must do so immediately, for we have already unnecessarily delayed effective action far too long.

Caveat

We are still a very long way from eliminating the overdraft.With each day that passes any solution becomes more difficult, more expensive and less likely to succeed. The BWD must, therefore, take bold, vigorous, and immediate action to mitigate the overdraft to make up for precious lost time. The Board has at least a moral and ethical obligation to all residents of the District, and a special duty to its rate-payers who until now have borne the entire cost of groundwater management, to ensure the sustainability of the Valley's sole source aquifer. The community can neither tolerate nor afford yet another year of timidity, confusion, equivocation, dithering, inaction and failure by the Board.

The Board and the ad hoc/standing committee have both refused to even seriously consider a proposal that an extraction fee be imposed on all pumpers in the Valley so that all who take water from the aquifer pay in proportion to the amount of water each uses.  Be that as it may, it is still the simplest and most equitable means of distributing the fast growing costs of groundwater management over all beneficiaries.  Having dismissed an extraction fee out of hand, it is now incumbent on the this ad hoc/standing committee to propose a means of achieving this same end that the Board of Directors will approve before aadvancing any other expensive groundwater management projects.  To do otherwise amounts to nothing more than building castles in the air.

Summary and Conclusion

In sum, the BWD has an obligation to all residents of the District to protect and preserve the Valley's sole source of water and to distribute the cost of doing so equitably over all beneficiaries according to the amounts of water used by each.  Voluntary and cooperative measures to end the overdraft and address the issue of equitable cost sharing have been tried and found wanting. The BWD Board must now adopt more rigorous, systematic, organized, effective and equitable means of discharging and financing their duty of stewardship.

Implementation of the Borrego Water District's Groundwater Management Plan, in one way or another, has been thwarted for years by apparent differences of opinion over the exact nature and extent of the overdraft of the area's sole source aquifer. Nonetheless, all factions acknowledge that there is, in fact, a serious overdraft of the aquifer dating back many years. The steadily falling water table confirms it. No one denies it.  As a result, a stalemate exists even as groundwater levels continue falling at an alarming and unsustainable rate.

It is high time for the Borrego Water District Board to fish or cut bait.  We are now into the third year of the groundwater management plan.  Nothing substantial has been accomplished with respect to its implementation.  None of the action items from the 2003 Annual Groundwater Plan Update meeting have produced results.  No action items were even generated at the 2004 meeting, despite clear requirements to do so contained in the groundwater management plan itself.  The Board is derelict in its duty.

Resolution of differences with respect to the BWD Groundwater Management Plan and funding its implementation is a necessary but by no means sufficient, condition for actually dealing with the overdraft.  The BWD Board must become vigilant, assertive, proactive and tenacious in discharging their duty of stewardship.  Absent careful planning and vigorous execution by the Board there will be devastating consequences for this spectacular place in which we are privileged to live.

Thank you for your thoughtful consideration of these offerings

[1] Borrego Water District Groundwater Management Plan, September 25, 2002

[2] Borrego Water District Groundwater Management Plan, 2003 Update.From the annual update meeting for the groundwater plan, January 22, 2003.  Adopted by the BWD Board of Directors at its regular meeting on February 26th [2003].

[3]Borrego Water District, "Status of Work to Resolve Groundwater Overdraft," undated

[4]Status of Work.  Groundwater Plan, 74.

[5]Status of Work.  Groundwater Plan, 73.

[6] Status of Work.  Annual Update 2003.

[7] Letter from Pam Elias, Chief, Code Enforcement Division, Department of Planning and Land Use, County of San Diego, CA, June 30, 2004.

[8] Status of Work.  Groundwater Plan, 73.

[9] Status of Work.  Groundwater Plan, 73.

[10]Kirk Johnson and Dean E. Murphy, "Drought Settles In, Lake Shrinks and West's Worries Grow." New York Times, May 2, 2004.  Scripps Howard News Service, "The Dry, Dry West Could Get Even Worse," May 05, 2004 .

[11]Henderson, Thomas William, Hydrology and Numerical Modeling of the Borrego Valley Aquifer System (master's thesis, San DiegoStateUniversity, 2001).

[12] Netto, Steven Paul, Water Resources of Borrego Valley, San Diego   County, California (master's thesis, San DiegoStateUniversity, 2001).

[13] Alley, William M., Thomas E. Reilly, and O. Lehn Franke,.Sustainability of Ground-Water Resources,  U.S. Geolological Survey Circular 1186 (Denver:U.S. Government Printing Office, 1999), 70.