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.”

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.”

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.”

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.

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