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.”

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.

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.”

BBID Responds as State Water Board Issues Notice to Cut Off Senior Water Rights

Byron, CA (July 23, 2021) – “Byron-Bethany Irrigation District (BBID) is aware of the emergency Notice of Water Unavailability impacting senior, pre-1914 water rights, including the District’s, issued by the State Water Resources Control Board this afternoon.

We will vigorously defend our water rights and maintain that the best available data does not support such an extraordinary action by the SWRCB, whose methodology for determining water availability is deeply flawed.

In the coming days and weeks, BBID’s team of legal, engineering, and hydrological experts will seek remedies to protect the customers we serve, including the multi-generational farming families who rely upon the water we provide.” – Rick Gilmore, General Manager