Byron-Bethany Irrigation District Honored with Statewide Water Award

Monterey, CA (May 10, 2017) – In recognition of its victorious, high-stakes stand to protect some of the oldest water rights in California, Byron-Bethany Irrigation District (BBID) was honored Wednesday with the 2017 ACWA (Association of California Water Agencies) Excellence in Water Leadership Award.

According to ACWA, the prestigious annual award recognizes those who make a “remarkable and visible contribution to the enhancement, protection or development of water resources in California.” The award was presented at ACWA’s Spring Conference in Monterey to BBID GM Rick Gilmore, and BBID Board President Russell Kagehiro, who accepted on behalf of BBID’s Board of Directors.

“On behalf of the entire District, we extend our deepest appreciation to ACWA for this incredible recognition,” Kagehiro said. “Our fight was not only for BBID, but for districts statewide, whose water rights provide the backbone of the communities we collectively serve.”

“Providing reliable water is the essence of our mission,” Gilmore said. “Though it wasn’t easy, we had no choice but to take the lead, navigating extreme regulatory uncertainty to defend the water supply that is rightfully ours.”

ACWA President Kathleen Tiegs, left, poses with BBID GM Rick Gilmore, center, and BBID Board President Russell Kagehiro.

Amidst harsh drought in 2015, the State Water Resources Control Board (SWRCB) issued unprecedented curtailments, and subsequently accused BBID of taking water when none was available, threatening a $5-plus million fine. BBID’s legal team fought back to preserve the District’s pre-1914 water rights, disproving the state’s arguments. The SWRCB eventually dismissed the case, securing a victory that would resonate throughout California’s water community.

“Byron-Bethany’s district staff and elected officials understood what was at stake for their community,” said ACWA President Kathleen Tiegs. “Their foresight, leadership and ability to build consensus in the face of extreme challenge kept water flowing for the residents, farmers, agricultural workers and families in their multi-county service area.”

BBID was nominated for the Excellence in Water Leadership Award by the San Luis & Delta-Mendota Water Authority (SLDMWA), a collective of water agencies representing more than 2 million acres of 29 federal and exchange water service contractors.

“California is blessed to have thousands of dedicated water leaders who make our incredible water management system work so well,” said SLDMWA Executive Director Jason Peltier. “When leadership shines through most clearly is in a time of crisis, and Rick and his Board earned this award by leaning forward into the regulatory machine that now controls so much of our system. It took guts and commitment to secure justice. They did it.”

The 2017 Excellence in Water Leadership Award.

Demonstrating BBID’s deep connection to its community, numerous Letters of support were submitted on BBID’s behalf, including one from Gay Costa of the Mountain House School District.

“Mr. Gilmore, the BBID Board, and their staff went into the hearings with the weight of our farmers, ranchers’ community and this school on their shoulders,” Costa wrote. “The students witnessed a pillar of their community stand up for their right to carry on their family business and continue a culture deep in tradition and pride.”

Farmer Mike Sandhu also wrote in support of the District, “Without BBID’s stand, growers could have been stripped of our livelihoods and driven off our land that, for some of us, goes back generations. Their commitment secured our children’s futures. We have the water we need today – and tomorrow – thanks to BBID.”

Another letter was submitted by former BBID counsel and current in-house counsel for Placer County Water Agency, Dan Kelly.

“While, in certain circles, BBID’s decision to challenge the SWRCB’s curtailments was not popular – it was the courageous thing to do,” Kelly wrote. “Leaders are not people who simply fall in line. Leaders are people who make hard decisions; often unpopular, to achieve the right and just result. Rick Gilmore and the BBID Board of Directors did just that.”

As part of the Excellence in Water Leadership Award, BBID will be privileged to present a $5,000 charitable donation to a non-profit organization of their choosing that works toward the enhancement and protection of California’s water resources.

WATCH: Click below to see BBID accept the 2017 ACWA Excellence in Water Leadership Award!

Decision to Increase Growers’ Water Supply Too Little, Too Late

Byron, CA (April 20, 2018) – Byron-Bethany Irrigation District (BBID) General Manager Rick Gilmore issued the following statement after the U.S. Bureau of Reclamation (USBR) announced an increased water supply allocation – from 20% to 40% – for South-of-Delta Central Valley Project (CVP) contractors, including BBID:

“Once again, the USBR is taking a far too conservative approach. Nearly every reservoir across California is at, or well above, historical average. Shasta Lake is at 108% of normal. San Luis Reservoir is at 100% of normal. If that doesn’t merit an allocation for BBID’s CVP growers greater than 40%, then what will?”

“The USBR’s decision to delay this announcement to this point – when growing season is well underway – means that it will be difficult for farmers to take full advantage of the increased water availability. Many planting decisions have already been made based upon a smaller supply. Simply put: the Central Valley Project is broken and we need to make changes to restore its delivery capabilities – especially when there’s more than enough water to go around.”

–Rick Gilmore, GM

California Ag Network: Irrigation Districts’ Court Victory Reestablishes Certainty for Irrigation Water

From California Ag Network on April 11th, 2018:

By Lauren D. Bernadett & Michael E. Vergara

California’s recent drought challenged practically everyone in the state, and those challenges were most acutely felt by farmers and the agricultural industry. While the state and local districts made several significant law and policy changes during the drought, one decision that caused great concern and had significant effects for water providers and users was the State Water Resources Control Board’s (Water Board) issuance of curtailment notices to many water right holders. A recent court victory for several irrigation districts and water agencies (Public Agencies) helped maintain future certainty for water users and right holders.

The Water Board is the state administrative agency tasked with managing the state’s water resources and regulating its tiered water rights. Although the Water Board disputed the nature of the curtailment notices it issued to water right holders in 2015, the notices clearly instructed right holders to stop diverting water immediately and report to the Water Board when diversions ceased.

Many of the Public Agencies who received the curtailment notices were initially baffled by the notices. They essentially gave Public Agencies two choices: (1) accept, without a hearing, the Water Board’s stated basis for the directive to stop diverting water, which would harm residential, commercial and agricultural customers; or (2) defy the notice and risk substantial administrative penalties for every day of diversion. Some Public Agencies decided to continue diverting. Some stopped diverting and purchased water from other sources, if available. Others complied and ceased diversions entirely.

Neither the Public Agencies, nor the water users to whom they supply water, were given the opportunity to conduct a hearing and review the Water Board’s determinations or findings allegedly supporting the directive to cease diverting water immediately. Public input, including the opportunity for the public and regulated community to be heard regarding administrative decisions, is a fundamental tenant of American due process and was completely lacking in the Water Board’s decision to issue the curtailment notices. Instead, the putative evidence supporting the notices was untested, even though the curtailments greatly affected businesses and livelihoods throughout the state.

Responding to the notices, several Public Agencies filed separate civil lawsuits against the Water Board in different state courts. Shortly after the lawsuits were filed, however, the Water Board initiated administrative enforcement proceedings against two Public Agencies that were pursuing litigation against the Water Board for issuing the curtailment notices—Byron-Bethany Irrigation District (BBID) and the West Side Irrigation District (WSID).

In the administrative proceedings, several Public Agencies joined BBID and WSID to defend against the Water Board’s allegations that they illegally diverted water after the curtailment notices were issued. In support of the Public Agencies, several farmers from districts that had been curtailed attended the administrative hearing at the Water Board’s office in Sacramento, and they provided heartfelt testimony regarding the devastating impact of the curtailments on their operations, their employees and the communities they serve. After three days, the State Board’s Enforcement Team completed their case in chief, and BBID and WSID moved to dismiss the enforcement action. After considering the motion to dismiss, the Water Board determined that its own staff members failed to present sufficient evidence to carry its prosecutorial burden of proof and dismissed the administrative proceedings.

This dismissal (an exceedingly rare event before the Water Board) was a tremendous victory for the Public Agencies. Had the Public Agencies lost at this administrative proceeding, BBID would have been subject to a fine of approximately $1.5 million (which was reduced from the $5 million threatened in the Water Board’s Administrative Civil Liability Complaint), and WSID would have been subject to a cease and desist order regarding their water diversions. Prevailing at the administrative level helped maintain some certainty for the water community, but several issues remained for litigation, including whether the Water Board could issue the same curtailments in the future. If so, did it have to give the recipient of the notice an opportunity to be heard?

To answer these questions, the Public Agencies’ lawsuits against the Water Board were consolidated into one case and were set for trial in January 2018. The allegations against the Water Board were numerous and some were dependent on the outcome of others, so the parties agreed to separate the trial into three phases.

To date, only the first phase has been tried, but it addressed the most immediate issues impacting water users and right holders.

The threshold issue in the case is whether the Water Board has jurisdiction under a specific state statute to issue curtailment notices to riparian and pre-1914 appropriative water right holders, the most senior water right holders in the state. The court decided that the Water Board does not have that authority under the circumstances of the case. As a state agency, the Water Board’s actions must be within the scope of authority granted to it by the Legislature. Because the Water Board’s issuance of the curtailment notice was not supported by any state law, it did not have the authority to curtail riparian and pre-1914 water right holders.

This portion of the decision is crucial to maintaining certainty in the water world. Most, if not all, senior water right holders depend on the predictability and consistency that comes with their senior water rights. Prior to the issuance of the curtailment notices, riparian and pre-1914 water right holders believed they understood the relationship between them, their rights and the Water Board. The issuance of the curtailment notices upset that predictability and undermined trust in the Water Board’s ability to manage water thoughtfully and in accordance with long-standing state law. The part of the court’s decision relating to the Water Board’s jurisdiction confirms for water users and right holders that the state’s actions during the 2015 curtailments were not in conformity with existing law.

The second primary issue in the Public Agencies’ lawsuit is rooted in due process and questions whether the Water Board improperly deprived the Public Agencies of their opportunity to be heard prior to issuance of the curtailment notices directing immediate cessation of diversions. Again, the court sided with the Public Agencies and determined that the Water Board violated due process requirements and is required to provide those who receive curtailment notices with an opportunity to challenge the notices before imposing curtailments and issuing fines.

Reinforcing fundamental due process rights is critical because these rights ensure that the government is responsive to its citizens first and foremost, rather than to an overreaching government agenda.

Because only the first phase of the trial is complete, a final decision will not be issued until the remaining phases are complete. However, this early decision preserving established water rights law provides that, if the Water Board decides to curtail in the future, it must find a different method for implementing curtailments and must provide due process opportunities to water right holders.

Lauren D. Bernadett is an associate with Somach Simmons & Dunn in Sacramento, CA. Bernadett is a natural resources lawyer who has counseled private and public clients through administrative processes and litigation in state and federal courts. She can be reached at lbernadett@somachlaw.com.

Michael E. Vergara is a shareholder with Somach Simmons & Dunn in Sacramento. Vergara serves as outside litigation and general counsel to businesses and public entities that have environmental law issues. He can be reached at mvergara@somachlaw.com.

Link: http://www.californiaagnet.com/2018/04/11/irrigation-districts-court-victory-reestablishes-certainty-for-irrigation-water/

CBS Sacramento: California Farmers Finding More Ways to Conserve Water (WATCH)

On Thursday, Byron-Bethany Irrigation District (BBID) was featured in a CBS Sacramento story about the District’s collaborative efforts with local farmers to save water. BBID has cut its water use by more than 50%, saving millions of gallons of water by teaming up with growers to switch to drip tape irrigation and microsprinklers.

The District has also completed a number of capitol improvement projects to improve water efficiency and reliability.

Watch the story below!

READ: Final Statement of Decision Issued in Phase One of Water Rights Trial

On Tuesday, the Santa Clara County Superior Court issued its final statement of decision in phase one of a landmark water rights trial. The judge ruled that the State Water Resources Control Board (SWRCB) lacks jurisdiction to enforce priority of rights between pre-1914 and riparian water rights.

Byron-Bethany Irrigation District (BBID) filed the action, challenging unlawful curtailment notices issued by the SWRCB in June 2015 to pre-1914 water rights holders, including BBID. Judge Brian Walsh also determined that the curtailment notices violated BBID’s due process rights.

Read the final Statement of Decision from Judge Brian Walsh below.

4-3-18 Courts Notice of Entry of Order on Final Statement of Decision Ph...

Staff Spotlight: BBID Team Members Recognized with Training Certification, Safety Award (VIDEO)

Byron, CA (March 20, 2018) – Three members of the Byron-Bethany Irrigation District (BBID) team were recognized this week for completing cutting-edge safety and professional development training.

Staff members Antonio Narez, Tony Papini, and Joe Resendes completed the Association of California Water Agencies (ACWA) Joint Powers Insurance Authority (JPIA) Operations Specialty Program. They each attended 30 required classes to earn the certification. It is the first time that BBID staff members received completed an ACWA JPIA professional development program.

BBID staff Tony Papini (left), Antonio Narez, and Joe Resendes pose with GM Rick Gilmore.

BBID GM Rick Gilmore announced the recognition in an impromptu ceremony at District headquarters, celebrating the above-and-beyond dedication of our staff members.

Watch the video below!

Antonio, Tony, and Joe were also honored with ACWA JPIA’s H.R. LaBounty Safety Award for Spring 2018, commemorating their outstanding work on BBID’s Furtado Drain project, pictured below.

WATCH: Pump Station Back Online

Byron, CA (March 13, 2018) – Byron-Bethany Irrigation District’s Pumping Plant Three, the District’s newest pump station, is back online. Our crews completed extensive repairs following a pipeline failure last year. A temporary fix was installed to prevent any service interruptions to BBID’s growers.

See the repairs below!

Tracy Press: Judge Rejects State Board Ruling on Water Rights

From the Tracy Press (Feb. 23rd): A decision issued this week by a Santa Clara County Superior Court judge reaffirms senior water rights held by Tracy and Delta farmers — and those throughout California.

In his ruling, Judge Brian Walsh determined that the State Water Resources Control Board lacks jurisdiction over pre-1914 and reparian water rights in a suit filed by the Byron-Bethany Irrigation District and supported by other Tracy water agencies.

Read the full article below!

2.23.18 Judge rejects state board ruling on water rights - Golden State Newspapers: Tracy Press News

Stockton Record: SJ Water Users, Cut Off During Drought, Win a Round in Court

From the Stockton Record (Feb. 21st): Thousands of water-right holders who were told to cease diversions during the last drought were deprived of due process, a judge found Wednesday, raising questions about how the state will handle future shortages.

Santa Clara Superior Court Judge Brian Walsh ruled that the water users, including some mostly agricultural districts in the Delta, were not afforded “certain minimal protections” like formal hearings in which they might have challenged the state’s claim that there wasn’t enough water available.

Read the full article below!

SJ water users, cut off during drought, win a round in court