News

Court: State Water Resources Control Board Ordered to Pay Attorneys’ Fees in Landmark Water Rights Case

Santa Clara County (November 20, 2022) – The Byron-Bethany Irrigation District (BBID) is a step closer to recovering more than $1 million in attorneys’ fees arising from its successful challenge of the State Water Resources Control Board’s (State Board) curtailment orders issued during the 2015 drought.

On Friday, the Court of Appeal for the Sixth Appellate District (Sixth District Court) ruled that a coalition of California irrigation districts and water agencies (Districts) are entitled to recover their attorneys’ fees incurred during the Santa Clara County Superior Court litigation regarding the State Board’s actions in 2015, when it unlawfully issued curtailment notices under Water Code section 1052 to more than a thousand pre-1914 water right holders, including BBID.  The Sixth District Court’s ruling reversed an earlier decision by the trial Court, which denied Districts’ motion for recovering of their attorneys’ fees.

“It has been a long road,” said interim BBID General Manager Ed Pattison. “The District is grateful the Sixth District Court recognized BBID’s right to recover a substantial portion of the expenses it shouldered defending our pre-1914 water rights, which are both the foundation for the communities we serve and the crops grown in our service areas.”

The Sixth District Court’s decision recognizes that the Districts incurred the bulk of their attorneys’ fees after the threat of fines or penalties ceased.  The Sixth District Court concluded: “The Districts bore millions of dollars in attorney fees but realized no direct pecuniary gain as a result of their victory on due process and jurisdictional grounds.” The Sixth District Court determined that “the trial court abused its discretion”, directing the trial court “to award the Districts under section 1021.5 the attorney fees that they incurred for the court litigation.”

November 23, 2022 in Legislative & Legal Affairs

Regional Water Storage Project Receives Significant Federal Funding

Contra Costa County (October 18, 2022) – The U.S. Bureau of Reclamation announced it will allocate $82 million for the expansion of Los Vaqueros Reservoir, a project that will improve regional water reliability and provide environmental benefits across the Bay Area and Central Valley. The Byron-Bethany Irrigation District (BBID) is participating in this project through its membership with the San Luis & Delta-Mendota Water Authority (SLDMWA).

“As we face an uncertain future, the District is committed to taking the necessary steps to secure water reliability for our growers,” said acting BBID General Manager Ed Pattison. “Participating in 21st-Century projects like the expansion of Los Vaqueros Reservoir – which is the result of collaboration, innovation and forward thinking – is a significant step toward building long-term drought resilience.”

A total of $210 million of federal water storage funding was allocated to seven projects in the western U.S., under the Bipartisan Infrastructure Law approved by Congress in late 2021. The Los Vaqueros Reservoir Project is receiving the largest portion.

“BBID is grateful for the productive partnership between the Bureau of Reclamation and the Los Vaqueros Joint Powers Authority,” Pattison continued. “This funding will help the project move forward and demonstrates that our federal partners recognize the importance of supporting improved water management for California’s people, its food supply and its environment.”

The project was previously approved for $477 million from California Prop 1 funds and $136 million for construction in federal funding.

When complete, the capacity of Los Vaqueros will be increased from 160,000 acre-feet to 275,000 acre-feet. New and upgraded conveyance facilities will be added to provide comprehensive benefits to water supply reliability and flexibility, the environment, and recreation. Construction is expected to begin next year and continue through 2030.

October 28, 2022 in District News

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.”

September 14, 2022 in Legislative & Legal Affairs

BBID Water Supply Update – August 2022

Byron, CA (August 25, 2022) – The Byron-Bethany Irrigation District (“BBID” or “District”) has an important update for its customers: as of this posting, the District’s water rights are not curtailed, meaning water deliveries will continue as normal.

Back in July, the State Board approved and adopted a revised Emergency Regulation regarding water use and curtailment in the Sacramento-San Joaquin Delta watershed.  It was anticipated the revised Emergency Regulation would lead to new curtailments reaching BBID’s post-1914 right, serving the West Side Service Area, as well as BBID’s pre-1914 senior water right, serving the Byron and Bethany service areas.

However, BBID’s water rights were not included in a new round of curtailments announced this week. In an update, the State Water Resources Control Board said, in part:

“After consultation with and the concurrence of the Delta Watermaster, and consistent with the technical assumptions regarding water unavailability in the Legal Delta outlined in methodology documents released on June 27, 2022, curtailments remain in place for certain rights within the Legal Delta. Although the methodology indicates that water is unavailable for appropriative water right holders in the Legal Delta with a priority date of 1908 or later, curtailments in the Legal Delta will remain unchanged pending further discussion between the Division of Water Rights and the Office of the Delta Watermaster.”

Earlier in July and in the span of less than one week, the State Board issued, then rescinded curtailment with little notice and no explanation.

Before the State Board rescinded the last curtailment order, BBID’s legal team filed a request for a Temporary Restraining Order, arguing the order was issued without due process and is not supported by adequate evidence. BBID also argues the methodology used by the State Board to determine water unavailability in the Legal Delta is fatally flawed, and cannot support curtailment of BBID’s water rights. Since last summer, and on numerous occasions, the District’s team of legal, engineering, and hydrology experts offered comments and possible solutions to the State Board to refine the methodology and improve its accuracy.  Despite these comments, and those made by other Delta stakeholders, significant problems remain with the methodology and it remains unsuitable for determination of curtailments in the Delta.

As this evolving situation unfolds, the District will continue providing regular updates to ensure customers are informed. In the meantime, BBID continues to secure alternative water supplies and vigorously defend its water rights.

August 24, 2022 in Customer Corner, District News

BBID Water Supply Update – July 2022

Byron, CA (July 25, 2022) – Due to recent State Water Resources Control Board (State Board) actions, the Byron-Bethany Irrigation District (“BBID” or “District”) is advising its customers of potential future curtailment of the District’s water rights, which may come this summer.

At its regular July meeting, the State Board approved and adopted a revised Emergency Regulation regarding water use and curtailment in the Sacramento-San Joaquin Delta watershed.  The revised Emergency Regulation will now be considered by the Office of Administrative Law (OAL) before it becomes law. If enacted, the revised Emergency Regulation will likely lead to another, deeper round of curtailments in mid-August.  We anticipate such curtailments reaching BBID’s post-1914 right, serving the West Side Service Area, as well as BBID’s pre-1914 senior water right, serving the Byron and Bethany service areas.

Earlier this month and in the span of less than one week, the State Board issued, then rescinded curtailment with little notice and no explanation.

Before the State Board rescinded the last curtailment order, BBID’s legal team filed a request for a Temporary Restraining Order, arguing the order was issued without due process and is not supported by adequate evidence. BBID also argues the methodology used by the State Board to determine water unavailability is fatally flawed, and cannot support curtailment of BBID’s water rights. Since last summer, and on numerous occasions, the District’s team of legal, engineering, and hydrology experts offered comments and possible solutions to the State Board to refine the methodology and improve its accuracy.  Despite these comments, and those made by other Delta stakeholders, significant problems remain with the methodology and it remains unsuitable for determination of curtailments in the Delta.

The District’s TRO is still pending before a Sacramento County Superior Court, and the hearing on it is scheduled for next week—July 29.  If the judge grants BBID’s request, future curtailments this summer are unlikely.  This, however, depends on the relief the judge provides.  The District commits to providing additional updates with any developments in this rapidly evolving situation.

In the meantime, BBID continues to secure alternative water supplies and vigorously defending its water rights.

July 25, 2022 in Customer Corner, District News

ALERT: State Lifts Curtailments

Byron, CA (July 13, 2022) – Just days after ordering the Byron-Bethany Irrigation District (BBID) to shut off its pumps and halt water deliveries at the height of the growing season, the State Water Resources Control Board (Board) lifted the curtailments of BBID’s water rights.

At 4:07 on Tuesday, the Board issued a Drought Update advising that the pre-1914 water right serving much of BBID’s service area, and the post-1914 water right serving the District’s West Side Service Area, are no longer curtailed.

“Based on the latest guidance from the Board, BBID will immediately resume regular water deliveries,” said BBID Board President Russell Kagehiro. “We hope, at this point, the roller-coaster ride threatening the harvesting of many perishable crops in BBID will cease, and we can get back to the business of delivering water to our farmers and providing the sole source of water to the 28,000 people of Mountain House.”

Last week, with less than 24 hours’ notice, the Board abruptly curtailed BBID’s senior water rights, effective July 7th. That came 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. After this latest action, it is unclear if future curtailments are possible this summer.

On Monday, the day before curtailments were lifted, BBID’s legal team filed an application for a Temporary Restraining Order in Sacramento County Superior Court, arguing the orders were issued without due process and are not supported by adequate evidence. BBID also argued the methodology used by the Board to determine water unavailability is fatally flawed. For months, the District’s team of legal, engineering, and hydrology experts worked continuously with the Board to refine the model to improve its accuracy and usability, but significant problems remain.

“In the weeks and months ahead, we urge the Board to recognize that these decisions are not made in a vacuum and have real consequences for the communities we serve,” Kagehiro added. “The back-and-forth of the last few days has left our growers in an extremely difficult position with crops just days away from harvest. We expect better from our governmental agencies.”

July 13, 2022 in District News

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.”

July 7, 2022 in District News

BBID Water Supply Update – June 2022

Byron, CA (June 15, 2022) – The Byron-Bethany Irrigation District (BBID) has an important water supply update for its customers. On June 7, the State Water Resources Control Board’s Division of Water Rights issued an update earlier this month advising that, witha the exception of junior water rights with Term-91, water rights in the Legal Delta will not be curtailed.  Specifically, the notice states in pertinent part the following:

  1. No curtailment of rights and claims within the Legal Delta. In coordination with the Office of the Delta Watermaster, Division of Water Rights staff are in the process of updating several technical assumptions regarding water unavailability within the Legal Delta. Pending completion of those updates, rights and claims within the Legal Delta will not be curtailed pursuant to the Drought Emergency Regulation.  Term 91 curtailments will continue to apply to rights within the Legal Delta containing Term 91.  (Bold in the original.)

All BBID water rights, including the pre-1914 water right that provides for much of the District’s service area, are in the Legal Delta.  The post-1914 water right now held by BBID (formerly, the West Side Irrigation post-1914 water right) does not contain Term 91.

BBID’s team of legal, engineering, and hydrology experts continue to work with Board staff to resolve latent defects with the Water Unavailability Methodology for the Delta Watershed used by the Board to determine water unavailability in the Legal Delta.

West Side Service Area: This area, formerly the West Side Irrigation District, is served by a post-1914 junior water right. This water right is currently not curtailed. However, to be prudent and in anticipation of possible curtailments, the BBID Board of Directors ratified a 50% water delivery schedule for the West Side Service Area, effective July.

Central Valley Project (CVP) Service Area: Currently, South-of-Delta CVP contractors including BBID have a 0% allocation. In April, the U.S. Bureau of Reclamation reduced the initial 25% M&I allocation to Public Health & Safety.

BBID continues to seek alternative water supplies and, when necessary, vigorously defend its water rights. The District will provide water supply updates as conditions change.

June 15, 2022 in Customer Corner, District News

Water Supply Update – April 2022

Byron, CA (April 15, 2022) – As dry conditions persist across California, the Byron-Bethany Irrigation District (BBID) is establishing a regular water supply update to keep its customers informed.

  • Pre-1914 (Senior) Water Right: Currently, BBID’s pre-1914 senior water right is not curtailed. That senior water right provides for reliable water deliveries across much of the District’s service area. However, it is anticipated that curtailments could occur this summer due to drought conditions.
  • West Side Service Area: This area, formerly the West Side Irrigation District, is served by a post-1914 junior water right. This water right is currently not curtailed. Again, it is anticipated that curtailments could occur this summer.
  • Central Valley Project (CVP) Service Area: Currently, South-of-Delta CVP contractors including BBID have a 0% allocation. Earlier this month, the U.S. Bureau of Reclamation reduced the initial 25% M&I allocation to Public Health & Safety.

BBID will continue to seek alternative water supplies and, when necessary, vigorously defend its water rights. The District and its expert consultants are engaged with the State Water Resources Control Board and the Delta Watermaster to help refine the methodology that provides the basis for water right curtailments.

In the coming weeks and months, the District will provide water supply updates as conditions change.

April 15, 2022 in Customer Corner, District News