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

BBID Issues Letter to State Water Board on Landmark Water Rights Case

In a concerted effort to fairly and efficiently resolve a landmark water rights case, the Byron-Bethany Irrigation District (BBID) on Tuesday issued the below letter to the State Water Resources Control Board (SWRCB).

The letter references ongoing litigation that BBID and other petitioners are engaged in against the SWRCB in Santa Clara County.

Read more about the case here. More coverage is here. The full letter is below.

SWRCB_Marcus_072418

District Honored with Historical Declaration for Protecting Water Rights

Byron, CA (May 30, 2018) – On Wednesday, Rep. Jeff Denham (R-Turlock) officially recognized the Byron-Bethany Irrigation District (BBID) for its commitment to protect the oldest water rights in California. Rep. Denham presented District leaders with a plaque commemorating a passage the Congressman read into the Congressional Record, the official historical record of the United States Congress.

Rep. Jeff Denham (R-Turlock) presents the BBID Board of Directors with a plaque commemorating remarks read into the Congressional Record.

In those remarks read on the floor of the U.S. House of Representatives, Rep. Denham congratulated BBID for receiving the Association of California Water Agencies’ 2017 Excellence in Water Leadership Award. He also recognized the District’s “bold actions in defendingthe water rights of the farming communities within their area of service.”

In 2016, BBID prevailed before the State Water Resources Control Board (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 eventually dismissed the complaint, citing the prosecution team’s failure to prove its case.

“There are not too many irrigation districts that are willing to take on the state, and certainly the few that did have not won,” Rep. Denham said at Wednesday’s ceremony. “The fact that you took them on – and the fact that you won – not only made sure that our water rights are held dear to us, but I think it tells the State we’re a force to be reckoned with. I was very proud to tell my colleagues in Washington, D.C. about the good work you’re doing here, and that you took the fight on and won the fight.”

Rep. Denham was joined by BBID’s Board of Directors and District staff. Several of the District’s growers were in the audience, as well.

“We are humbled,” said BBID General Manager Rick Gilmore. “To receive formal recognition from Congressman Denham, as well as having our efforts read into the Congressional Record, is a tremendous honor.”

From left, BBID Director Jeff Brown, Rep. Jeff Denham, BBID GM Rick Gilmore, BBID Board President Russell Kagehiro, and BBID Directors Larry Enos, Jr., and Chuck Tuso pose with the Congressional Record plaque.

Watch a video of the ceremony:

Rep. Denham’s full remarks read into the Congressional Record are below:

Mr. DENHAM: “Mr. Speaker, I rise today to recognize and congratulate Byron-Bethany Irrigation District for being awarded the Association of California Water Agencies’ 2017 Excellence in Water Leaders Award. Byron-Bethany Irrigation District serves crucial farming communities in California’s Central Valley including the city of Tracy, which is located in my district. The water they distribute allows their customers to cultivate successful farmland that both promotes a successful economy and feeds the world.

This award is in recognition of BBID’s bold actions in defending the water rights of the farming communities within their area of service. In the face of the California drought, the State Water Resources Control Board issued curtailment orders for the local community that would drastically affect the crucial farmland that BBID serves.

The District General Manager, Rick Gilmore, and the district’s seven-member Board of Directors launched an effective legal effort to protect the water rights of local farming communities. They argued that the state’s analysis of available water was inaccurate. The state’s dismissal of the case against BBID in 2016 was a victory for small farming districts, and cemented the water rights that serve as a foundation for BBID’s community.

The Excellence in Water Leaders Award is presented annually by the Association of California Water Agencies to an individual or group that has made a visible contribution to California water. ACWA is a statewide association of public agencies and their members are responsible for about 90% of water delivered in California. ACWA’s recognition of Byron-Bethany Irrigation District’s impact on the water rights for small farming communities is an immense honor. Mr. Speaker, please join me in honoring and commending the Byron-Bethany Irrigation District for receiving this impressive award and for their exuberance and dedication to our local farming communities within California’s Central Valley.”

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/

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...

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