California State Law and Groundwater

The law of beneficial use of groundwater derives from English Common Law. The formation of California in 1850 rests on a constitution that lawmakers have amended to reflect the state's unique requirement to share groundwater among both agricultural, domestic, industrial, and recreational users. Property rights advocates misquote California law when they state that a landowner has an absolute right to the beneficial use of all groundwater. The absolute right to beneficial use regardless of its impacts is not supported either in the State's Constitution or in its evolving Case Law.

Doctrine of Reasonable Use

The Constitution of California (Article 10 Section 2) states that groundwater use be reasonable as well as beneficial:

“... the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare.”

Beneficial use that is unreasonable is therefore not lawful. In Borrego, perpetual overdrafting impacts all the people and the economic welfare of the community. Persistent overdrafting is ultimately subject to adjudication, regulation or other action in order to preserve the necessary economic rights of the people to an assurance of water. Groundwater extractions cannot be both beneficial and unreasonable. Otherwise, a tragedy of the commons unfolds which the constitution implies is to be avoided. Overdrafting by a few interests cannot trump the economic right of the majority of the people to a future. California law and economic necessity require a future with water that is safe, potable, and affordable.

Doctrine of Correlative Rights

Under the 1903 Case of Katz v. Walkinshaw, the state established the correlative rights of all to a single source of water. Each overlying landowner is entitled only to his reasonable correlative share of the common supply. Today, this doctrine in California is the doctrine of correlative rights. All parties are co-related by a single source of water in Borrego. To dewater in a manner that is disproportionate injures the economic rights of others who take water in a beneficial and reasonable manner. No party or group of parties has the right to individually or collectively overdraft the common supply.

The multitude of injuries present in Borrego are accumulating. The right to develop and subdivide in Borrego is severely impacted by local and county mitigation ordinances. The manifest risk of investing in real estate inhibits the fresh flow of capital into the community. Realtors are by law required to disclose all known facts including a declining water supply. Confidence in the future of Borrego drains away in proportion to overdrafting.

The prospect of taxation to develop new water resources is another prospect which Borregans face in the future. In order to develop new water sources, the Borrego Water District has and continues to study the formation of a Communities Facilities Tax District. With this tax, every property owner, in varying degrees dependent on property type and size, would pay into the Borrego Water District so as to fund capital expenditures to improve the water supply. This tax would be voted on by the local residents. In 2006, a community work shop showed that there is great hostility to the idea of a specific property tax for this purpose, especially if there is no specific capital project approved and planned.

Psychologically, the vast majority of local residents are inflamed by those who dewater so long as it can be shown to be of some beneficial use. (In some seasons, portions of crops are not harvested and consequently the water use is beneficial only in keeping the trees alive). Montesoro (formally Rams Hill) exercised little concern for the Doctrine of Correlative Rights when it designed a new golf course that included extensive water features. De Anza Golf Course dewaters at a significant level to maintain acres of turf purely for aesthetic purposes beyond the in-play boundaries. Some homeowners are egregious in their water uses with landscapes abounding in turf and other non-native consumers of water.

Investors completing basic due diligence think twice about sinking money into Borrego because the common supply of water is not sustainable. Graduates of the local High School and young families perceive a long term risk in choosing to buy real estate in Borrego. They think twice about planting roots into a community where the unsafe yield of the supply impacts their future viability.

The correlative rights doctrine provides explicit rights to all parties. Any party has a lawful right to obtain relief where excessive overdrafting jeopardizes a certain future. There is no right in California law of a party to deprive another party of their economic future in a community. Overdrafting and unsustainable groundwater use deprives Borrego of its secure future. Its impacts are visible today to the informed observer. Adjudication of the water supply is an honored means for achieving water equity.

Doctrine of Right of Certainty

Implied by the Doctrine of Correlative Rights is the Doctrine of Certainty. Land use permitting, the promise to serve water by the Borrego Water District are grounded in the principle of certainty. Certainty derives from the social and legal policies that make clear who has rights and in what order those rights may be affirmed.

A grantee of an entitlement and a new water user is given a right to a certain future under California law. However, in the event there is a perpetual overdraft as is the case in Borrego, the Doctrine of Certainty in California makes clear the order and priority of the rights to the common supply.

When a basin is in equilibrium, however, appropriators such as the Borrego Water District, the Community Services District, and the Homeowners Association of Fletcher Air Ranch are allowed to pump. A basin in equilibrium allows for appropriation:

A basin not in equilibrium extinguishes the rights of appropriators in favor of the rights of the overlying landowners. If overlying landowners are still overdrafting the common supply, then water is apportioned according to the Doctrine of Correlative Rights:

Doctrine of Prior and Paramount Rights Holder

This doctrine upholds the principle of “First In Time, First In Right”. In an adjudication such as Barstow v. Mojave Water District, this principle was argued successfully to the State Supreme Court. The farmers in this case argued successfully that an equitable apportionment did not account for their prior and paramount right to groundwater.

In Borrego Springs, Di Giorgio Fruit Corporation abandoned farming in 1967 as both uneconomic and unrealistic in favor of real estate development. An argument could be made, therefore, that the interests of real estate, as of this date, are equal or greater in priority to those whose agricultural activities came after that date. Since the founding of Borrego Springs is integrally tied to farming, the priority rights of those parties are manifest and defensible. An adjudication for Borrego would be a costly and divisive affair.

Doctrine of Overlying Rights and Appropriative Rights

The overlying rights of an owner supersede the rights of a local appropriator in an overdrafted basin. In an overdrafted basin, appropriation is specifically forbidden. If the common supply is insufficient for the overlying owners, as is the case with agriculture and golf courses in Borrego, an apportionment of the safe yield is required by California law according to the Doctrine of Correlative Rights. If an appropriator (the Borrego Water District) can show a lengthy prescriptive right, the overlying holders will generally be required to share in the common supply. Since the District owns water rights ceded by landowners via its purchase of the Borrego Water Company, its prescriptive and appropriative rights are strengthened.

The Doctrine of Safe Yield

Under California law, the Safe Yield Doctrine dictates that a community determine a yield that will allow for a long term supply of water. A basin's safe yield cannot be abused indefinitely as is the case in Borrego. The Borrego Water District has a “police” and “emergency” power allowing for the enforcement of this doctrine in circumstances where no other remedy has been established.

Groundwater Sustainability Ordinance

What to do? This question has been paralytic. Adjudication is certainly an option and has proved to perform the service required, namely to assess and allocate water resources. Is there another option? We believe the Groundwater Sustainability Ordinance provides greater flexibility to all parties.

What is a Groundwater Sustainability Ordinance? It stipulates that overdrafting will be eliminated in 30 years, plus or minus a small delta. The green area shows the gradual elimination of overdrafting over thirty years. 500 Acre Feet is the amount by which overdrafting would be reduced on a straight line basis. An immediate program to import 14,000 Acre Feet of water is one costly way to achieve equilibrium. Another is strict rationing of the available recharge. The preferred outcome, it seems, is a combination of in-valley efficiencies and regional importation from the Clark's Dry Lake Project and other areas with surplus. This ultimately may mean a tie-in to the Colorado Project and purchases from the Metropolitan Water District or Northern California sources according to a wheeling arrangement.

It is our contention that the Borrego Water District has the legal jurisdiction under California Water Law to draft and pass the Groundwater Sustainability Ordinance. We recommend and urge the District to confirm this legal standing with counsel and to come to a decision on this recommendation. If not, then the State of California would be petitioned requiring the adoption of a GSO on a district by district basis where the Safe Yield is in constant violation.

It is not within the scope or interest of this research to define the implementation elements of the GSO. The GSO is a principle. It should not favor one implementation strategy over another. Indeed, the GSO must not prescribe how equilibrium is to be achieved. Each year, the Board working with public and private resources can and should make decisions which are in the interests of fulfilling the principle. The ratification of the GSO should should not tie the hands of a future Board.

It is clear that any adjudication or GSO implies that well operators account for their use. The right to pump a common supply without accountability is not tenable. Enforcement options, allocation schemes, and limiting annual housing starts are some of the many options available but are beyond the scope of this research to discuss in any detail and they should not be included in the ordinance body.

Once in force, the District would impanel a Sustainability Audit Committee. This committee would have the responsibility for achieving annual goals stipulated under the Board's sustainability program. Some annual flexibility would and should be allowed. A robust system of credits provides incentives to those pumpers who achieve annual reductions in excess of their goals. The purchase of credits allows a pumper of water to maintain current levels for each year the purchase allowed.

It is with great interest that the Borrego Water Exchange looks to a majority of stakeholders including local and state agricultural interests to craft a Groundwater Sustainability Ordinance. Such an ordinance would require, over time, a water supply in equilibrium. This would benefit all economic interests because it would create a future holding a promise of security in the common water supply. The growth and prosperity of Borrego would be certain. And, it would prove that a community can manage equitably a scarce resource. Present risk of a certain failure would, by virtue of the ordinance, be wiped out creating a surge in economic confidence and value.

Such a future allows for farming and golf but at levels that are very water efficient. A starting place for change in the agriculture makeup in Borrego is the excellent proposal by Steven Smiley, “A Proposed Agricultural Water Use Reduction Program”. written in September, 2005. This proposal contains forward-thinking ideas for changes in crop types. Another proposal on the table is from Incommunity Renewables to exploit agricultural land for solar farming.

The Groundwater Sustainability Ordinance does not include a costly tax burden though some assessments may be required to pay back for water importation systems. Rather, free-market incentives and a robust market for credits allow for a transition to equilibrium at the pace of each pumper of groundwater. Equilibrium is realized in a safe, secure and thoughtful manner. Pumpers earn credits by exceeding reduction goals which can then be sold to pumpers unwilling or unable to do so in a specific year. New sources of water brought in by the District would offset its reduction requirements. The ordinance could provide for incentives to transition to new economic activities including jojoba and solar farming.

There are many thoughtful and conscientious residents of Borrego. They seek to be good stewards. Their warnings and concerns have been heard for many years. They are solution oriented and not looking to more studies. Publications and studies state the science and situation clearly: overdrafting is risky, abusive, unfair, and not supported by California law. The time is ripe for concrete action at either the local or state level. A Groundwater Sustainability Ordinance is such a step. Borrego Springs is a community innovative enough to take this step. The Borrego Water District will be respected for generations to come for leading in this step.

Further Reading

Attached to this research and proposal is the opinion of the court in the appeal of Allegretti Farms versus Imperial County.  In general, the County sought to limit the farm's annual extractions to a “reasonable and beneficial” amount. The County set 12,000 Acre Feet as the upper limit for the 2,400 Acre Farm. The owner objected and brought the case to the Supreme Court of the United States. Imperial County prevailed in its right to set limits to groundwater extractions. Therefore, it provides one of the most revealing sets of arguments pro and con for reasonable regulation to achieve reasonable and beneficial use. The BWD, under state law, has the same powers allowing it to pass and then enforce a Groundwater Sustainability Ordinance.

Another excellent source of how to achieve sustainability in Borrego Springs is the three page white paper by Steven Smiley, “A Proposed Agricultural Water Use Reduction Program”. Written in September, 2005, it provides a number of innovative ideas about crop alterations leading to demand reduction of agriculture, the source of greatest water consumption of water in Borrego. It is the contention of this author and others that there is an economic and cultural role for agriculture in Borrego. It must be consistent with Safe Yield. Crop types in the future cannot be colossal consumers of water because every acre of importation or local replenishment will be costly. The management of this cost depends on rational and innovative crop selection for the future. The prosperity of the farmer depends on shifting to water wise crops. Steven Smiley's White Paper shows how.