From the Tracy Press (June 26): A certificate of recognition for Byron-Bethany Irrigation District’s success in defending agricultural water rights was recently presented to the district by Rep. Jeff Denham, R-Turlock.
Read the full article below.
Byron-Bethany Irrigation District recognized for water rights fight - Golden State Newspapers: Tracy Press NewsWATCH: U.S. Representative Jeff Denham (R-Turlock) honored Byron-Bethany Irrigation District (BBID) for its commitment to protect pre-1914 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.”
Byron, CA (May 30, 2018) – Fueled by whipping winds, a series of fast-moving wildfires swept across Byron-Bethany Irrigation District’s (BBID) service area Wednesday afternoon. Fire officials say seven separate fires charred more than 500 acres. Cal Fire officials said the Grant Fire was 35% contained as of 9 p.m. Wednesday.
BBID crews shot the below video as first responders arrived. Overhead, a Cal Fire helicopter performed water drops.
At one point, the fire raced toward the facilities of the BBID-operated Byron Sanitary District, but flame retardant dropped from above and fire crews on the ground kept the flames at bay.
Security camera footage shows the smoke enveloping the area, and pictures snapped by BBID personnel show the aftermath of the close call.
Byron Highway, a main thoroughfare in the area, was closed for several hours. The cause of the fires is unknown. No injuries were reported.
Byron, CA (May 28, 2018) – Byron-Bethany Irrigation District (BBID) General Manager Rick Gilmore issued the following statement, after the U.S. Bureau of Reclamation (USBR) crept up the water supply allocation – from 40% to 45% – for South-of-Delta Central Valley Project (CVP) contractors, including BBID:
“The Bureau’s latest allocation increase amounts to a drop in the bucket for BBID’s farmers, who should have been able to count on a much more robust supply in a year like this. The statewide average for CVP reservoirs is more than 100 percent of normal, just one year removed from the wettest year on record.
The still-low allocation – which began at 20% and has gradually increased to 45% – shows that the greatest challenge to reliable CVP water deliveries is our regulatory climate, not Mother Nature.
We join our partners at the San Luis & Delta-Mendota Water Authority (SLDMWA) in calling for change. Overly conservative and restrictive CVP operations create unnecessary hardships not just for farmers, but for the entire state. If the federal government can’t supply requisite deliveries even with abundant supplies, then clearly, the system is broken.”
–Rick Gilmore, GM
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
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.
SACRAMENTO – Assemblymember Adam C. Gray (D – Merced) renewed calls today to fix the state’s broken water rights management system following a court ruling that condemned the State Water Resources Control Board’s broken enforcement process.
Read more below!
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!