Borrego Sun - Since 1949

The Borrego Springs WaterMaster has a new web page: http://www.borregospringswatermaster.com. Meeting notices, agendas, agenda packets, committee meeting agendas/packets, agreements that constitute our Basin Management Plan and more can be found there. Correspondence to the WaterMaster can now be sent to: BorregoSpringsWM@westyost.com.

ENVIRONMENTAL WORKING GROUP

The EWG reported back to the WMB with a mission statement and a call for applicants for three at-large seats, which in addition to WMB Directors Bennett and Jorgensen, would make this a five-member group. Here’s the mission statement and call for applicants as stated in the December 10th agenda packet:

The role of the Environmental Working Group (EWG) is to advise and further the mission of the Borrego Springs Watermaster to implement the Stipulated Judgment and comply with Sustainable Groundwater Management Act (SGMA) by focusing on the protection of human health and the environment. The activities of the EWG shall be approved by the Watermaster Board and will always include a nexus between environmental issues and the sustainable use of groundwater in the Borrego Springs Subbasin. Activities of the EWG could include, but are not limited to:

•Environmental assessment, monitoring, and habitat restoration or enhancement associated with groundwater dependent ecosystems

•Management of fallowed lands and the potential for participating in biological mitigation projects

•Addressing improperly abandoned wells

•Management of non-native (invasive) species for water conservation purposes

•Air quality monitoring

•Pursuit of funding opportunities

To best fulfill this mission, EWG members should have a background in science and one or more of the following specialties: desert ecosystems, groundwater dependent ecosystems, hydrogeology, hydrology, and/or the local water resources and biology of the Borrego Springs Subbasin and surrounding area. Local knowledge of the Borrego Springs area and local residency is also preferred.

Please see the agenda packet for the Dec. 10 meeting for the application if you are interested in applying. The initial meeting of the EWG with all five members will be in February, with information to be posted on the WMB web page.

PUBLIC TRANSPARENCY

The following text can be found at the Borrego Springs Watermaster web page under “Stipulated Judgment,”section IV,B,4, pages 31 – 32: https://www.borregowaterlawsuit.com. It is a legal document now before the California Superior Court, an essential part of the plan governing the use of water in our basin.

“4. Watermaster Board Meetings. All Watermaster Board meetings and hearings must be conducted in substantial accordance with the requirements of the California open meeting laws under Government Code sections 54950 et seq., otherwise known as the “Brown Act” provided, however, that not withstanding section 54953(b)(3), at least two of the Watermaster Board members shall participate in Board meetings from locations overlying the Basin. Further, because the Watermaster Board acts under the authority of the Superior Court and does not qualify as a “local agency” under government code section 54951, any and all challenges to Brown Act compliance by the Watermaster Board may be heard only by the Superior Court Judge with continuing jurisdiction over the Judgment in the underlying action, in compliance with the requirements of the Judgment. Regular Watermaster meetings must be noticed with an agenda and supporting materials made available to the public at least three days prior to the meeting, and shall be open to the public in a public location that overlies the Basin. Meeting minutes must be taken of all Watermaster Board meetings, a copy of which must be furnished to any member of the public requesting such minutes.”

This passage seems to clearly give authority to the court to enforce “substantial” and explicitly mentioned meeting noticing and open meeting requirements of the Brown Act as it applies to the WMB. Nevertheless, at the Dec. 10 WMB Meeting, the WMB Counsel, Jim Markman, said that the adherence to the Brown Act by the WMB was voluntary only, with no possible recourse for enforcement That seems to me to be an incorrect interpretation and also one that could undermine the negotiated public transparency in the Stipulated Judgment. The above passage uses words like “must” and “shall” with regard to the Brown Act provisions. The same legal document earlier on under Definitions, Exhibits: Construction, p. 12, line 15, identifies these terms as indicating something mandatory.

On the morning of submitting this report for publications, a clarification was received from Markman on this issue, and it is very much appreciated since the idea that adherence to the Brown Act is voluntary has been mentioned many times at WMB meetings. Markman replied (note in italics is mine, though approved by Markman) that “the Board does operate with the concept of complying with the Brown Act. This is provided in the settlement agreement and enforceable by the Court, but only once the Judgment is entered (when the court officially affirms the Judgment). At that point in time, if there were perceived Brown Act violations by the Board, they could be brought before the Court which will retain jurisdiction to manage the Basin through the implementation of the Judgment. Up until the entry of Judgment, only a settlement party or parties could criticize the Board due to perceived Brown Act violations, but it would require another civil proceeding to enforce that criticism.” Markman say further that “the Watermaster is not a public entity subject to enforcement of the Brown Act by a District Attorney, the FPPC or a member of the general public. The Watermaster will become an agent of the Court when the Judgment is entered and any Brown Act issues could then be litigated in the context of the entered Judgment, and, if ever necessary, the Court could impose remedies necessary to cure Brown Act violation.

And again, most importantly, the Board and staff are acutely aware of the need for transparency in Borrego water management and understand the intent of the settling parties to have the Board operate in compliance with the Brown Act."

Additional Highlights from the Dec. 10 meeting include:

ED Samantha Adams gave a financial report. Of the anticipated revenue of just over $1 million for the year, 70% has been received for the first of two installment payments from fees on pumpers. The WMB seems to be keeping an eye out for the remaining payments that are now overdue, and the ED is following up with pumpers whose payments have not yet been received. The expenses projected by ED Adams are about $250,000 less than previously expected.

A discussion was held about making sure fallowing standards were met prior to awarding WMB baseline pumping allocations (BPAs) for the conversion of past BWD fallowing credits. Fifteen pumpers have these, some of whom already have BPAs for other water use. Where there is a cost to determine if the standards were met, some Directors wanted to ensure that the water credit holder bears the cost of such determination. Some sites have wells no longer in use that will need to be correctly closed down, and there have been other unmet conditions. The WMB will need to review documents at the next meeting to decide what responsibilities the WMB has to identify the issues for the credit holder and what responsibilities lie with the credit holder.

BWD Attorney Steve Anderson reported that the physical noticing of property owner who could not be reached via the postal service should be completed by Dec. 15 and by mid-February anyone who wanted to appear in the lawsuit will have responded. There are conferences with the judge for the Borrego water lawsuit on Feb. 11 and March 11. A phone number to call to listen in to any conferences and hearings is now posted at http://www.borregowaterlawsuit.com. If any of the fifty or so original named defendants to the lawsuit want to simply file agreement with the stipulation, there is a note on the web page explaining how to do that at a much reduced cost ($20) than a full “answer” response to the lawsuit. Anderson also reported that if there are no serious objections to the stipulation, there wouldn’t be a trial. But if there are such objections, then a preliminary injunction would be sought in the Spring. The CA Department of Water Resources (DWR) will review the Judgment once it is entered by the court and DWR has some time to raise objections (over a year). The presiding judge could make a final judgment prior to DWR responding. Then if DWR wants changes, that would require a consultation with the parties involved and a return to court with a request to make changes in the Judgment.

Upcoming WMB Regular Meetings are scheduled for January 14, 2021 and February 11, 2021 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.