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.

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.

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.

BBID Argues Court of Appeals Should Uphold Landmark Water Rights Decision

In the CA 6th District Court of Appeal, the Byron-Bethany Irrigation District (BBID) is urging the court to uphold a landmark decision solidifying the oldest water rights in California. Attorneys on behalf of BBID responded to an appeal filed by the State Water Resources Control Board, saying in part:

The Legislature never provided the State Board with the authority it now seeks from this Court. That is, the Legislature did not authorize the State Board to use trespass under Section 1052 as a means to preclude (i.e., curtail) Senior Right holders from diverting water within the scope of their rights, regardless of times of water shortage or surplus. To the contrary, the Legislature has been careful not to extend the right to regulate Senior Rights to the State Board, consistent with the fact that Senior Rights pre- date the State Board’s existence and authority. In addition, no court has interpreted the State Board’s other statutory authority to allow for such curtailment. Through this appeal, though, the State Board asks this Court to legislate from the bench, expanding its authority to curtail Senior Right holders in a manner that the Legislature has repeatedly not granted through the various amendments to Section 1052.

The trial court accurately concluded that the State Board did not have authority to curtail Respondents’ diversions of water under their valid Senior Rights, and this Court should affirm the trial court’s judgments regarding the State Board’s jurisdiction under Section 1052.

Background: The ongoing case is related to a 2015 enforcement action brought by the State Water Resources Control Board (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 seeking a $5 million fine. On the third day of the administrative hearing before the SWRCB, BBID’s legal team successfully argued that the evidence submitted by the SWRCB litigation team failed to meet its burden of proof, and the SWRCB hearing officer granted BBID’s motion for judgment dismissing the enforcement action.

After the dismissal of the enforcement action, BBID resumed its 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 to enforce priority of rights between pre-1914 and riparian water rights. The Court’s ruling solidifies the oldest water rights in California. 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 which the notices were based.

BBID Files Petition for Reconsideration in Water Right Curtailments

Sacramento, CA (September 2, 2021) – Today, the Byron-Bethany Irrigation District (BBID) filed a formal Petition for Reconsideration with the State Water Resources Control Board (SWRCB), regarding recent water right curtailments impacting thousands of water right holders, including BBID.

The full document is below.

09022021 BBID Petition for Reconsideration of Res 2021-0028 Curtailment Order - FINAL (00116239xD2C75).PDF

UPDATE: Water Right Curtailments Set to be Lifted, State Water Board Says

Sacramento, CA (August 31, 2021) – On September 1, 2021, the unprecedented water right curtailments cutting off water supplies to thousands of water users in the Delta and San Joaquin watersheds will expire.

According to the update provided by the State Water Resources Control Board (SWRCB), the curtailments, which took effect on August 20, will terminate September 1. The SWRCB’s modeling tool indicates sufficient water will be available for water right holders, including the Byron-Bethany Irrigation District (BBID), to resume diversions.

BBID will resume normal water diversions once the curtailments cease. BBID’s pre-1914 water right, as well as its post-1914 water right serving the District’s West Side Service Area, are both curtailed. The water rate in the WSID Service Area will also revert to the regular 2021 rate.

Last Wednesday, BBID’s technical and legal team, as well as District leadership, met with Delta Watermaster Michael George to express objections to the SWRCB’s methodology used to determine water availability.

BBID, a senior water rights holder south of the Delta, was one of dozens of senior water right holders curtailed in 2015. BBID – facing a $5-plus million fine – prevailed before the SWRCB, proving that the methodology used by the SWRCB was flawed. Though the methodology has been revised since the SWRCB ruled in BBID’s favor in 2016, it still contains fatal flaws.

“This is a very fluid situation,” said BBID General Manager Rick Gilmore. “We will monitor any informational updates provided by the State Water Board in the coming days and weeks. Ultimately, we remain strongly committed to protecting our water rights and preserving reliable water supplies for our growers, the community of Mountain House and our M&I customers. To that end, we will continue to work collaboratively with the State Water Board to help bring clarity to these critically important decisions.”

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