Court of Appeal: State Water Board Exceeded Authority with 2015 Curtailments

Santa Clara County (September 13, 2022) – On Monday, in a decision certified for publication, the Court of Appeal for the Sixth Appellate District holds that the State Water Resources Control Board (SWRCB or State Board) exceeded its enforcement authority when issuing curtailment notices in 2015 to certain pre-1914 water right holders, including the Byron-Bethany Irrigation District (BBID).

In its ruling, the court finds that Water Code Section 1052(a) does not provide the State Board authority to “curtail an entire class of pre-1914 appropriative water rights solely on the basis that the Board believes that there will be insufficient water to serve all pre-1914 appropriative rights.” The ruling continues, “For these reasons, we agree with the trial court’s conclusion that the Board lacked authority under section 1052(a) to issue the 2015 curtailment notices to respondents.”

The case is related to a 2015 enforcement action commenced by the SWRCB against BBID shortly after BBID sued the SWRCB over unlawful curtailment notices issued by the SWRCB to more than a thousand pre-1914 water rights holders, including BBID. Over BBID’s objection, the Santa Clara Court stayed BBID’s lawsuit pending completion of the administrative hearing of the SWRCB’s enforcement action.

The SWRCB’s enforcement action sought enforcement of the curtailment notices against BBID for diverting water when allegedly none was available under its priority of right, and the SWRCB sought a $5 million fine. On the third day of the administrative hearing before the SWRCB Hearing Team, BBID’s legal team successfully argued that the evidence submitted by the SWRCB Prosecution Team failed to meet its burden of proof, and the SWRCB Hearing Team granted BBID’s motion for judgment dismissing the enforcement action.

After the dismissal of the enforcement action, BBID resumed the related lawsuit, and on April 3, 2018, Santa Clara Superior Court Judge Brian Walsh issued his Statement of Decision holding, among other things, that the SWRCB lacks jurisdiction under Water Code §1052 to take enforcement action against  pre-1914 water right holders based on a general lack of available water under their priority of right. Judge Walsh also held 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 prior to enforcement.

“This ruling helps safeguard senior water rights in California,” said acting BBID General Manager Kelley Geyer. “It confirms that the authority of the State Water Resources Control Board is limited to that which the Legislature granted it, nothing more. Senior water rights are the foundations of urban and rural communities throughout the state,” Geyer continued. “They are also the backbone of reliable agricultural water deliveries that support cultivating our food supply – in California, the nation, and the world. Byron-Bethany Irrigation District believes protecting its pre-1914 senior water right on behalf of the multi-generational family growers and ranchers we serve is its primary responsibility, as well as providing the community of Mountain House with its principal water supply.”

State Shuts Off Water, Putting Crops in Peril

Byron, CA (July 7, 2022) The State Water Resources Control Board (Board) ordered Byron-Bethany Irrigation District (BBID) to shut off its pumps and halt water deliveries at the peak of the growing season. After 5:00 p.m. Wednesday, and with less than 24-hour notice, the Board abruptly curtailed BBID’s senior water rights, effective Thursday.

The move comes one month after the Board advised Delta diverters, including BBID, that pre-1914 and post-1914 (without Term 91) water right holders in the Legal Delta would not be curtailed this year.

“The State Water Board pulled a 180, reversing course without warning,” said BBID Board President Russell Kagehiro. “On behalf of our growers, we’re incredibly disappointed that we were misled into believing the District’s pre-1914 water right would not be curtailed. Thousands of acres of crops in our service area – some just days away from harvest – are now at risk of rotting in the fields.”

In addition, BBID provides the sole source of water to Mountain House, a growing community of more than 28,000 people near the City of Tracy.

“The Board’s hasty, unannounced and contrary action now puts Mountain House in an extremely difficult position,” Kagehiro continued. “We urge the Board to immediately approve Mountain House’s petition for a human health and safety exemption so we can continue, at the very least, providing water supplies to serve thousands of families.”

The post-1914 water right serving BBID’s West Side Service Area is included in the curtailment.  In a proactive move, the District’s Board of Directors previously ratified a 50% water delivery schedule effective in July, conserving available water supplies. The West Side Service Area receives supplemental water supply from the City of Tracy.

In anticipation of possible curtailment, BBID has sought additional water supplies, including potential water transfers and the use of groundwater wells within the District’s service area. The District will continue to rely on its pre-existing alternate supplies while continuing to look for more.

Furthermore, BBID’s team of legal, engineering, and hydrology experts will mobilize to protect the District’s water rights, as well as address significant flaws in the methodology used by the Board to determine curtailments in the Delta.

“We will leave no stone unturned,” Kagehiro said. “Crops and livelihoods are at stake.”

BBID Files Petition for Reconsideration in Water Right Curtailments

Sacramento, CA (September 2, 2021) – Today, the Byron-Bethany Irrigation District (BBID) filed a formal Petition for Reconsideration with the State Water Resources Control Board (SWRCB), regarding recent water right curtailments impacting thousands of water right holders, including BBID.

The full document is below.

09022021 BBID Petition for Reconsideration of Res 2021-0028 Curtailment Order - FINAL (00116239xD2C75).PDF

UPDATE: Water Right Curtailments Set to be Lifted, State Water Board Says

Sacramento, CA (August 31, 2021) – On September 1, 2021, the unprecedented water right curtailments cutting off water supplies to thousands of water users in the Delta and San Joaquin watersheds will expire.

According to the update provided by the State Water Resources Control Board (SWRCB), the curtailments, which took effect on August 20, will terminate September 1. The SWRCB’s modeling tool indicates sufficient water will be available for water right holders, including the Byron-Bethany Irrigation District (BBID), to resume diversions.

BBID will resume normal water diversions once the curtailments cease. BBID’s pre-1914 water right, as well as its post-1914 water right serving the District’s West Side Service Area, are both curtailed. The water rate in the WSID Service Area will also revert to the regular 2021 rate.

Last Wednesday, BBID’s technical and legal team, as well as District leadership, met with Delta Watermaster Michael George to express objections to the SWRCB’s methodology used to determine water availability.

BBID, a senior water rights holder south of the Delta, was one of dozens of senior water right holders curtailed in 2015. BBID – facing a $5-plus million fine – prevailed before the SWRCB, proving that the methodology used by the SWRCB was flawed. Though the methodology has been revised since the SWRCB ruled in BBID’s favor in 2016, it still contains fatal flaws.

“This is a very fluid situation,” said BBID General Manager Rick Gilmore. “We will monitor any informational updates provided by the State Water Board in the coming days and weeks. Ultimately, we remain strongly committed to protecting our water rights and preserving reliable water supplies for our growers, the community of Mountain House and our M&I customers. To that end, we will continue to work collaboratively with the State Water Board to help bring clarity to these critically important decisions.”

BBID Files Petition for Reconsideration on Water Right Curtailments

Sacramento, CA (July 15, 2021) – Today, the Byron-Bethany Irrigation District (BBID) filed a formal Petition for Reconsideration with the State Water Resources Control Board (SWRCB).

The filing is in response to the post-1914 Water Right Curtailment Notices the SWRCB delivered to post-1914 water right holders, including BBID. The notices impact growers and M&I customers in BBID’s West Side Service Area, formerly the service area of the West Side Irrigation District. The two districts recently consolidated.

The full filing and exhibits are below.

State Cuts Off Water to Thousands of Growers, Water Agencies

Sacramento, CA (June 15, 2021) – In a drastic move, the State Water Resources Control Board (State Water Board) notified thousands of California water agencies, growers, and landowners that their supply of water is cut off.

Yesterday the State Water Board sent water unavailability notices to 4,300 California water holders with post-1914 water rights, also known as junior water rights. This directive impacts San Joaquin County growers and M&I customers in the Byron-Bethany Irrigation District’s (BBID) West Side Service Area.

“We do not believe the best available data nor the State Water Board’s flawed water availability methodology support water right curtailments for post-1914 or pre-1914 water rights,” said BBID General Manager Rick Gilmore. “We also find it disappointing to initially learn about the State Water Board’s decision to issue notices of water unavailability from the media before receiving direct notice from the State Water Board,” Gilmore said.

BBID’s technical team previously identified several significant flaws with the State Water Board’s methodology, including the use of outdated data from past years instead of real-time information when available. The methodology also neglects to account for the different characteristics of watersheds across the state, including the quantity and quality of available data.

Meanwhile, notices were also sent to 2,300 senior water rights holders (pre-1914 and riparian), including BBID, informing them that similar notices of water unavailability may be sent this summer. The majority of BBID’s service area is supplied by water diverted under a pre-1914 water right.

In 2015, BBID successfully defended its senior water rights against an unprecedented administrative civil liability (ACL) complaint brought by the State Water Board. The complaint alleged BBID diverted water when none was available, threatening a $5-plus million dollar fine. The State Water Board eventually dismissed the complaint when BBID’s legal team demonstrated there was, in fact, water available.

“BBID is actively pursuing all available remedies to ensure reliable water supplies for our customers,” said BBID Board President Russell Kagehiro, “while examining every avenue to protect our foundational water rights. As we have done in the past, we will stand up for the communities we serve.”

BBID Seeks to Recover Fees from State in Landmark Water Rights Case

San Jose, CA (August 5, 2019) –On Monday, Byron-Bethany Irrigation District (BBID) filed a motion in Santa Clara County Superior Court, seeking to recover nearly $2 million in attorneys’ fees from the State of California.

The motion is directly related to an enforcement action brought by the State Water Resources Control Board (SWRCB) against BBID shortly after BBID sued the SWRCB over unlawful curtailment notices issued by the SWRCB to more than a thousand pre-1914 water rights holders, including BBID. Over BBID’s objection, the Santa Clara Court stayed BBID’s lawsuit pending completion of the administrative hearing of the SWRCB’s enforcement action.

The SWRCB’s enforcement action sought enforcement of the curtailment notices against BBID for diverting water when allegedly none was available under its priority of right, and seeking a $5 million fine. On the third day of the administrative hearing before the SWRCB, BBID’s legal team successfully argued that the evidence submitted by the SWRCB litigation team failed to meet its burden of proof, and the SWRCB hearing officer granted BBID’s motion for judgment dismissing the enforcement action.

After the dismissal of the enforcement action, BBID resumed its related lawsuit, and on April 3, 2018, Santa Clara Superior Court Judge Brian Walsh issued his Statement of Decision holding, among other things, that the SWRCB lacks jurisdiction to enforce priority of rights between pre-1914 and riparian water rights. The Court’s ruling solidifies the oldest water rights in California. Judge Walsh also held 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.

BBID now seeks recovery of the significant legal fees and costs incurred defending its senior water rights, and those held by the state’s other pre-1914 and riparian water right holders. The hearing of BBID’s motion is set for October 18th.

Read the full court documents below.

BBID Engages State Water Board to Ensure Proper Implementation of Water Rights Fairness Bill

In its ongoing commitment to ensure fairness for California’s water right holders, Byron-Bethany Irrigation District (BBID) proactively engaged the State Water Resources Control Board (State Water Board).

The below letter details BBID’s efforts to ensure the proper implementation of Assembly Bill 747, which establishes a neutral Administrative Hearings Office to adjudicate complex water rights matters.

SWRCB Esquivel_AB747 Hearing Officer_060319

Governor Brown Signs BBID-Backed Water Rights Fairness Bill

Sacramento, CA (September 24, 2018) – Landmark legislation crafted by Byron-Bethany Irrigation District (BBID) to restore Constitutional due process and restore fairness for California’s water right holders is now law. Governor Brown signed Assembly Bill 747, a bill introduced by Assemblymember Anna Caballero (D-Salinas). AB 747 passed the Legislature by an overwhelming bipartisan majority.

“The Governor’s action cements a significant step toward improving the transparency, objectivity and accountability for California’s water rights administration and enforcement,” said BBID GM Rick Gilmore. “This law will go a long way toward implementing the necessary checks and balances, as well as restoring the water community’s faith in the process.”

AB 747 establishes a fairer process for water right holders who for many years felt they had little choice but to settle enforcement actions brought against them by the State Water Resources Control Board (SWRCB). The SWRCB currently acts as both prosecutor and judge in enforcement actions initiated by the Board. This bill creates an Administrative Hearings Office within the SWRCB. Expert attorneys will serve as hearing officers to hear and adjudicate complex, critically important water rights matters. A similar structure is already in effect for many state agencies.

This legislation is the response to AB 313, which was introduced last session by Assemblymember Adam Gray (D-Merced), and ultimately vetoed by Governor Brown. Since then, BBID and other local government districts proactively engaged the Brown Administration to find common ground.  AB 747 is the result of that effort.

“On behalf of the BBID Board of Directors, I would like to thank Assemblymember Caballero and her staff for all of their hard work, and recognize Assemblymember Gray’s important contributions at the outset of this effort,” said BBID Board President Russell Kagehiro. “We must also thank Governor Brown and his Administration for their recognition of this critical issue impacting communities statewide, and for their collaboration to reach a solution.”

The new hearing unit will take effect in the coming months.

State Water Board Chair Responds to BBID Letter on Historic Water Rights Case

On Friday, State Water Resources Control Board (SWRCB) Chair Felicia Marcus issued a formal response to a letter sent last month by Byron-Bethany Irrigation District (BBID).

As part of the District’s efforts to fairly and efficiently resolve landmark water rights litigation, BBID issued the letter, which references ongoing legal action that BBID and other petitioners are engaged in against the SWRCB in Santa Clara County.

Read more about the case here  and here.

The SWRCB’s response is below.

8.10.18 FM Response Ltr BBID