Landmark Court Ruling Strengthens Senior Water Rights

San Jose, CA (February 21, 2018) – In a decision that reaffirms and solidifies the oldest water rights in California, the Santa Clara County Superior Court ruled Wednesday 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 because they commanded immediate curtailment of water rights and threatened large fines without providing water right holders an opportunity to challenge the findings upon which the notices were based.

“We strongly agree with the Judge’s decision,” said BBID General Manager Rick Gilmore. “This is a step toward a more equitable, protective process that ensures senior water rights holders across California will be able to rightfully exercise their property rights to the fullest extent of the law.”

In 2016, BBID prevailed in a related administrative hearing before the SWRCB, which sought enforcement against the District for allegedly diverting water when none was available under its priority of right, and alleging a potential $5 million fine. BBID’s legal team argued that careful analysis of the prosecution team’s evidence proved the SWRCB was ultimately incorrect. The SWRCB granted BBID’s motion for judgment dismissing the ACL complaint, citing the prosecution team’s failure to prove its case. The action before the Superior Court in Santa Clara was filed by BBID before the administrative proceedings began.

The Santa Clara County Superior Court will now hear Phases Two and Three of the action, including BBID’s takings claim. BBID will pursue recovery of its substantial legal fees and other costs associated with the SWRCB’s enforcement action, totaling millions of dollars.

“Our legal team is currently reviewing the ruling and its implications in greater detail,” Gilmore said. “We are hopeful that the decision generates momentum for positive change and brings renewed clarity to a complex, but critical arena. We remain committed to seeking collaborative, substantive solutions that provide fairness and due process for California’s water rights holders, on behalf of the communities that rely upon the foundation of reliable water.”

Read the full decision here.

 

Assemblyman Gray to Governor: Missed Deadline to Address Water Rights Fairness “Sends Wrong Message”

Sacramento, CA (January 8, 2018) – Assemblyman Adam Gray (D-Merced) is calling on Governor Brown to explain why a state agency missed a critical deadline to make recommendations for improved water rights fairness. In a letter delivered to Governor Brown, Asm. Gray said, “To a community that already feels attacked and abandoned, [the missed deadline] sends entirely the wrong message.”

Asm. Gray authored Assembly Bill 313, bipartisan legislation vetoed last session by Governor Brown. Byron-Bethany Irrigation District (BBID) provided technical support in crafting the bill.

AB 313 would have ensured that neutral, administrative law judges presided over all water rights matters – providing basic fairness and due process currently lacking for California’s water rights holders. The State Water Resources Control Board (SWRCB) writes regulations, initiates enforcement actions, and conducts hearings in its own courtroom with its staff members as acting as the prosecution team and its board members acting as the judge.

Assemblymember Adam Gray represents the 21st Assembly District.

In the Governor’s veto message, he directed the California Environmental Protection Agency to make recommendations to improve the State Water Resources Control Board’s hearing process. However, a January 1st deadline to provide those recommendations has passed. Assemblyman Gray is now requesting to meet with the Governor and CalEPA to “…understand why CalEPA has failed to meet the deadline and discuss the ramifications this disregard has for my district and our ability to engage in settlement discussions with the administration.”

The full letter is below.

1.8.18 AB 313 Governor Veto Letter

Western Growers: Brown Vetoes WG-Supported Fair Water Rights Hearing Bill

From Western Growers: “In the final hours to sign or veto bills sent to him by the California Legislature, Governor Brown vetoed AB 313 by Assemblymember Adam Gray, a Western Growers-supported bill that would have inserted much-needed balance into the state’s water rights enforcement activities…”

Read More!

Brown Vetoes WG-Supported Fair Water Rights Hearing Bill | Western Growers

Governor Brown Vetoes BBID-Backed Water Rights Fairness Bill

Sacramento, CA (October 16, 2017) – Late Sunday night, Governor Brown vetoed Assembly Bill 313, a bill introduced by Assemblyman Adam Gray (D-Merced) to promote fairness and due process in California’s water rights enforcement. Byron-Bethany Irrigation District (BBID) provided technical support in crafting the bill.

“The deck is stacked against the state’s water rights holders, and the State Water Resources Control Board holds all the cards,” said BBID General Manager Rick Gilmore. “They act as the judge, jury and prosecutor of the water world with immense impunity and no accountability. When the scales are tipped, water users lose faith in the process. The Governor could have restored some balance to this badly-broken system by signing AB 313.”

The bill received strong bipartisan support from the beginning and passed multiple policy committees, including the Assembly Water, Parks and Wildlife Committee, and the Senate Judiciary Committee. The bill was amended to include feedback from several water community stakeholders and environmental NGOs, and a broad coalition of water agencies and organizations across the state urged the Governor to sign it.

“Rarely have we seen such unity in the water community,” Gilmore said. “Clearly, the legislature agreed with overwhelming votes in both Houses that AB 313 is good public policy, and the Water Board’s decision-making process is inappropriate.”

The State Water Board currently writes the rules, initiates enforcement actions, then decides in its own court whether the alleged violator is guilty – with the Board’s own staff acting as prosecutors and Board members acting as the judge. AB 313 was a solution to the problem. The bill called for administrative law judges in a newly-created Water Rights Division to preside over water rights hearings, ensuring an objective, expert third party would adjudicate these complex, critically important matters. This approach is utilized by several state agencies and helps ensure fairness in enforcement proceedings.

“The Water Board has lost only one out of 2500 cases,” Gilmore continued. “How can anyone argue that we don’t need some checks and balances here? Isn’t everyone entitled to a fair hearing?”

In his veto message, Governor Brown said that he is “…directing the Secretary of the Environmental Protection Agency to evaluate the potential role for administrative law judges and provide a recommendation on improvements to the Board’s hearing process…” AB 313’s procedural structure is similar to legislation the Governor recently signed for the Board of Equalization.

Assemblyman Gray pledges to keep pushing, saying in a news release, “The bureaucrats at the State Water Board have lost any and all credibility with the communities I represent. I will continue to pursue every avenue at my disposal to promote greater public transparency and expose this out of control kangaroo court of an agency.”

“BBID recognizes and appreciates Assemblyman Gray’s leadership on an issue that impacts millions of Californians,” said BBID Board President Russell Kagehiro. “We are more committed than ever to working with our legislative partners to bring common-sense reform to California’s water rights enforcement. The stakes are high, and we will continue to fight for fairness.”

BBID Responds to Critical Mercury News AB 313 Editorial

Byron-Bethany Irrigation District on Monday issued a letter to the San Jose Mercury News, responding to the newspaper’s critical editorial on Assembly Bill 313, a BBID-backed water bill that restores fairness for the state’s water rights holders.

The Mercury News limits its Letters to the Editor to 150 words, so BBID chose to post its full response here. The original editorial is posted below BBID’s letter.

BBID’s Response

BBID Response to Mercury News Op-Ed

Original Mercury News Editorial

Editorial: Don't cave to Big Ag; veto water rights bill

BBID Responds to AB 313 Opposition Letter

Byron-Bethany Irrigation District is setting the record straight on Assembly Bill 313, a good governance bill ensuring fundamental fairness and due process for California’s water rights holders. BBID sent the below letter to Governor Brown, responding to a recent opposition letter submitted by a group of environmental organizations.

Lawmakers decisively passed the bill on the final day of the Legislative session. Introduced by Adam Gray (D-Merced), AB 313 now awaits Governor Brown’s signature.

BBID Response to AB 313 Opposition Letter

Multiple Agencies & Organizations Urge Governor to Sign AB 313 (Updating)

Joining Byron-Bethany Irrigation District, which previously submitted a letter to Governor Brown urging him to sign AB 313, multiple agencies have also sent the Governor letters of support. The bill introduced by Assemblyman Adam Gray (D-Merced) restores due process to water rights holders. AB 313 now awaits Governor Brown’s signature.

This post is being updated as more agencies submit letters to the Governor.

A coalition of agricultural organizations

AB 313 (Gray) 2017_09-20 Water Rights_Ag Coalition SUPPORT GOVERNOR

 

Northern California Water Association

NCWA_GovernorAB313Sept2717

 

Yuba County Water Agency

AB 313 (Gray}-Support

 

Merced Irrigation District

AB 313 (AG) Support Letter MeID

 

San Joaquin River Exchange Contractors Authority

Exchange Contractors Support of AB 313 - 9-20-17

 

Placer County Water Agency

PCWA Support AB 313 (2)

 

Western Canal Water District

WCWD_Gov.Brown.AB313.9.21.17

 

United Water Conservation District

United Water Conservation Dist. AB 313 Letter of Support

 

Central California Irrigation District

CCID AB 313

 

Cucamonga Valley Water District

CVWD AB 313 Request for Signature CVWD

 

Columbia Canal Company

CCC RevisedAssemblyBill313

 

San Luis & Delta-Mendota Water Authority

170922 - SLDMWA AB313 Support Letter to Governor - SUBMITTED

 

Patterson Irrigation District

PattersonID_2017-09-22 AB 313 Letter to Jerry Brown

 

Stanford Vina Ranch Irrigation Company

Stanford Vina Ranch Irrigation Company

 

Steve Nicolaou, Local Attorney

Letter to Hon. Edmund G. Brown, Jr. dated 09-28-2017