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

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team previously identified several significant flaws with the State Water Board’s methodology, including the use of outdated data from past years instead of real-time information when available.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, SLDMWA Express Concern with Proposed Russian River Emergency Regulations

The Byron-Bethany Irrigation District (BBID), and the San Luis & Delta-Mendota Water Authority (Authority) provided comments to the State Water Resources Control Board, expressing key areas of concern with the State Water Board’s proposed Emergency Regulations on the Russian River.

BBID is a member agency of the Authority, which represents 27 agencies providing water service to approximately 1,200,000 acres of irrigated agriculture, 2 million people, and 130,000 acres of wetlands within the western San Joaquin Valley, San Benito and Santa Clara counties.

Read the full letters below.

Water Supply Cuts Demonstrate Need for Long-Term Investments, Solutions

Sacramento, CA (May 28, 2021) – In the midst of worsening drought conditions, the U.S. Bureau of Reclamation (Reclamation) on Wednesday announced deeper water supply cuts for farms and communities, including those served by the Byron-Bethany Irrigation District (BBID).

The initial 2021 Central Valley Project (CVP) allocation for south-of-Delta CVP contractors including BBID was first set at 5% and then suspended until further notice. Reclamation announced the allocation has been eliminated altogether. The allocation for M&I water service contractors was also reduced from 55% to 25%.

BBID General Manager Rick Gilmore said in response:

“We recognize the difficultly Reclamation faces in fulfilling Central Valley Project water deliveries in a critically dry year. It yet again underscores the need for significant regulatory reform and diverse, meaningful engagement from federal and state leadership.

It also demands substantial investments to mitigate the very real short-term impacts to our growers in San Joaquin County and other communities impacted by a 0% CVP allocation, as well as for long-term sustainable solutions to bolster our resilience against this drought – and the next, and the one after that.

Between the October 2020 to May 2021, nearly 3.3 million Acre Feet of water passed through the Delta and flowed out to the Golden Gate Bridge – two thirds of the Delta inflow. Had we been able to capture even a small fraction of that water, it would have dramatically improved the situation we find ourselves in today.

We missed the opportunity to do so because of outdated environmental policies that have proven ineffective for restoring declining fish populations, and due to a lack of progress on building and expanding storage facilities to store water when it’s abundant, for dry years exactly like this.

We must work together in the months and years to come to reshape the CVP – its critical infrastructure, and the regulations that govern it – in order to meet the needs of our communities and provide reliable water for agriculture.”

BBID Identifies Areas of Concern with State Water Board’s Delta Water Unavailability Analysis

In a letter delivered Tuesday to the State Water Resources Control Board (State Water Board), the Byron-Bethany Irrigation District (BBID) identified several concerns with the State Water Board’s revised methodology for determining water unavailability in the Delta Watershed.

The full letter, a collaborative effort involving the District’s team of experts, is below.

BBID Comment Letter

Dry Weather Leads to Low Water Allocation

Sacramento, CA (February 25, 2020) – Today, the U.S. Bureau of Reclamation (Reclamation) issued an initial water supply allocation of 15% for South-of-Delta Central Valley Project (CVP) contractors, including the Byron-Bethany Irrigation District (BBID).

After a promising start to winter, dry conditions have returned across California. It has rained more in February in Death Valley than in Sacramento. The statewide snowpack is below average, and the long-range forecast indicates the lack of rain and snowfall may continue.

This image released by the National Weather Service, illustrates the dramatic difference between this year and last year’s snowpack.

“While we certainly wish Reclamation was able to issue a higher allocation, we recognize they must be responsive to our state’s current conditions,” said BBID GM Rick Gilmore. “The looming threat of the next drought underscores the need for adaptative water management. Implementing the new biological opinions abandons an outdated, restrictive approach in favor of real-time, cutting-edge science to best meet the needs of cities, farms and the environment.”

For the first time in a decade, updated biological opinions were issued last week. Those federal rules govern water use through the Sacramento-San Joaquin Delta. Had those biological opinions been in place last year, it is estimated that the projects would have been able to save more than one-million acre-feet of additional water. That would be tremendously valuable in any year, but especially in a dry one like 2020. At a 15% allocation, growers in BBID’s CVP service area will have a baseline water supply of just 0.51 acre-feet of water per acre – down from 3.4 acre-feet per acre with a full allocation.

“This initial allocation also underlines the need for investment in our water systems, including increasing storage to save more water during wet years for use during dry ones; and more conveyance to move water more flexibly, ensuring reliability in the face of increasingly unpredictable, extreme weather patterns.”

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/

BBID featured in Tracy Press article: Irrigation Starts Early in Dry Local Orchards

From the Tracy Press (Feb. 9th): The latest recorded rainfall in Tracy was on Jan. 26, and it wasn’t much — two-hundredths of an inch — and there’s no rainfall expected in the next two weeks at least. More and more people are beginning to say, “It’s feeling a lot like a drought — again.”

Evidence of that is unfolding in rural Tracy farmland, where irrigation water is starting to flow out of canals and into fields — a month earlier than “normal.”

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Byron-Bethany Irrigation District is referenced in the article. Read more below!

2.9.18 Irrigation starts early in dry local orchards - Golden State Newspapers: Tracy Press News

Byron-Bethany Irrigation District Commends Hertzberg Senate Committee Appointment

Byron, CA (December 22, 2016) – Byron-Bethany Irrigation District General Manager Rick Gilmore issued the following statement:

“Byron-Bethany Irrigation District applauds the selection of Senator Bob Hertzberg (D-Los Angeles) as chair of the Senate Natural Resources and Water Committee. Senator Hertzberg has spent more than 40 years studying the complexities of California water policy, and is an ideal candidate to help the state’s water community seek solutions in a great time of change.”

“We collectively face unprecedented challenges, from the sixth year of our historic drought, to renewed focus on water efficiency and storage, to the critical balancing of the needs of our cities, agriculture and the environment. Senator Hertzberg has already pushed pilot programs for capturing more stormwater and recycled water, as well as introduced legislation to stop wasteful dumping of treated water into the ocean. We look forward to partnering with him on California water solutions.”

State Water Board Curtailment Notice Threatens Thousands of Acres, Jobs

Byron, CA (June 7, 2016) – Byron-Bethany Irrigation District General Manager Rick Gilmore issued the following statement in response to the State Water Resources Control Board’s Curtailment Notice of June 12, 2015:

“In addition to the Byron-Bethany Irrigation District (BBID) suffering back to back years of “zero water supply” from the Bureau of Reclamation for BBID’s Central Valley Project Service Area, the State Water Resources Control Board’s (SWRCB) curtailment notice received today will have a devastating impact on the remaining customers of BBID, which holds water rights dating from over a century ago. As a steward of our great state’s resources, we understand the seriousness of the historic drought that is affecting California. However, this curtailment order will be extremely destructive to the customers we serve including nearly 160 farmers, 15,000 residents of the Mountain House community, and the energy projects in the area, all of which are essential to our community’s vitality.

The additional loss of water will destroy thousands of acres of crops and eliminate thousands of jobs, which will likely result in the irreparable loss of vibrant communities. Without water, our area will lose nearly 10,000 acres of almonds, cherries, sweet corn, grapes, tomatoes, walnuts, alfalfa and more. By this action, the SWRCB is taking away our ability to provide our customers with a safe, reliable water supply – a resource essential to life; particularly to the agricultural communities we serve.

In order to protect our customers and the crops in our service area, we will pursue relief from the SWRCB’s curtailment notice in Superior Court. We will vigorously defend our rights and will insist on due process and full consideration of factors that have not been adequately taken into account. We are optimistic that the Court will uphold our Constitutional rights, and the restriction on our diversion of water will be lifted before it has had a shattering impact on the communities we serve.”