State Water Board Takes Aim at Agriculture

Sacramento, CA (August 3, 2021) – In a rash action deeply harmful to California’s agricultural community, the State Water Board adopted potentially unlawful emergency regulations based on incomplete, and in some instances, inaccurate information, exposing the agricultural community to billions of dollars in lost economic productivity.

The emergency regulations can support curtailments that prematurely cut off more than 10,000 water right holders in the Delta and San Joaquin watersheds, nearly all of them devoted to providing reliable water for one of our state’s most essential industries: agriculture.

“The State Water Board is attempting to wrest regulatory control over pre-1914 water rights, just as it did during the last drought,” said Russell Kagehiro, Board President of the Byron-Bethany Irrigation District (BBID). “By targeting agriculture in the Delta region, the State Water Board is unfairly imposing an enormous burden on those who will sustain the greatest socioeconomic damage, by unfairly threatening thousands of jobs and valuable crops.”

BBID, a senior water rights holder south of the Delta, was one of dozens of senior water rights holders curtailed in 2015. BBID – facing a $5-plus million fine – prevailed before the State Water Board and proved that the methodology used by the State Water Board was flawed.

Just six years later, the State Water Board is again unfairly targeting California agriculture, by threatening to curtail agricultural water use in the Delta, and imperiling thousands of jobs and valuable crops, while urban conservation remains voluntary.

“The Board says its emergency regulations are based on ‘the best information available,’” said BBID General Manager Rick Gilmore. “However, the Board’s methodology for determining water availability is built upon a series of flawed assumptions and has been shown by our legal and technical team to be inaccurate.”

Though the methodology has been revised since the State Water Board ruled in favor of BBID in 2016, it still contains fatal flaws. It mistakenly assumes native water resides in the Delta no more than one month, when preliminary modeling shows it resides 2-3 months. It does not account for return flows available to Delta diverters. Its demand data is incomplete, and its demand calculations are duplicative.

“BBID urges the State Water Board to abandon this coercive path and work with growers and irrigation districts,” Kagehiro said. “Shared sacrifice and a more complete understanding of water availability will reduce the severe impacts these regulations will undoubtedly have in some of California’s most vulnerable communities.

“Should the State Water Board continue down this road,” Kagehiro continued, “we will have no choice but to defend our water rights, which are the foundation for reliable water deliveries for multi-generational farming families, M&I customers, and the sole source of supply for the growing community of Mountain House.”

BBID Responds to Proposed Water Curtailments

The legal and technical team of Byron-Bethany Irrigation District (BBID) prepared the following comment letter in response to recent emergency regulations proposed by the State Water Resources Control Board (SWRCB), which would cut off senior and riparian water rights, including those that provide reliable water supplies to BBID’s customers.

The full letter is below.

7-29-21 Comments re Emergency Curtailment Regs w-Exh A

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 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

BBID-Backed Water Rights Bill Passes, Headed to Gov. Brown’s Desk

Sacramento, CA (August 31, 2018) – In a decisive vote, lawmakers acted late Friday to pass Assembly Bill 747, water rights legislation introduced by Assemblymember Anna Caballero (D-Salinas). The bill crafted by Byron-Bethany Irrigation District (BBID) takes steps to restore Constitutional due process and fundamental fairness currently lacking for California’s water right holders. The bill passed the Senate and Assembly with strong bipartisan support on the last night of the legislative session.

“We commend Assemblymember Caballero for taking on this core issue impacting communities across California,” said BBID GM Rick Gilmore. “This good governance legislation is the result of constructive collaboration with the Brown Administration and a collective recognition of the need for greater transparency, accountability, and – above all – fairness in our water rights administration.”

Currently, the State Water Resources Control Board (SWRCB) acts as both prosecutor and judge in enforcement actions the Board initiates against water users. AB 747 removes that built-in conflict of interest by creating an Administrative Hearings Office within the SWRCB. Expert attorneys will act as an objective third party to oversee and adjudicate complex, critically important water rights matters.

“Too often, water right holders feel they have no choice but to settle enforcement actions given the current structure,” Gilmore added. “AB 747 levels the playing field and will help restore faith in the process, ensuring water right holders get a fair shake as guaranteed by our Constitution.”

AB 747 is a follow-up to AB 313, which was previously introduced by Assemblymember Adam Gray (D-Merced). AB 313 passed the Legislature with similarly strong support on both sides of the aisle, but was ultimately vetoed by Governor Brown. Since then, all parties have engaged in productive dialogue to reach a compromise that provides important protections for water rights holders.

“We would be remiss if we didn’t recognize Assemblymember Gray’s work on this issue,” Gilmore said. “From the very beginning, he championed this cause. We wouldn’t be where we are tonight without his tireless dedication.”

AB 747 now heads to Governor Brown’s desk for his signature.

Congress Coalition Expresses “Fervent Opposition” to State Water Board Plan, Vows to Protect Water Supply

Members of the United States Congress are vowing to take action if the State Water Resources Control Board (SWRCB) adopts a plan that calls for increased flows through the San Joaquin River. In a letter sent to the SWRCB, legislators say the proposal “clearly subordinates the beneficial human use of the water in favor of fish and wildlife measures of dubious validity…”

The full letter is below.

Letter to SWRCB Regarding Unimpaired Flow