Hearings Program

The irrigation districts claim appropriative water rights. Appropriative water rights are subject to the rule of priority, which means that the oldest, senior water rights are satisfied before more recently acquired, junior water rights. The priority of an appropriative water right determines the order in which water is available to that right. The rule of priority is especially important in times when natural flows in rivers and streams are limited, such as during a drought.

In application, the rule of priority means that water may not be legally available for diversion even though it is physically available in the stream. Water instream may be claimed by downstream more-senior users or water instream may have been released from upstream reservoir storage for rediversion or for instream use. Stored water is not available for diversion by downstream appropriators unless it is abandoned.

Bryon-Bethany Irrigation District claims an appropriative water right with a priority date of May 18, 1914, to directly divert water year round from the intake channel at the Banks Pumping Plant, formerly Italian Slough, for municipal, industrial, and agricultural uses in Contra Costa County.

The West Side Irrigation District holds water right License 1381, with a priority date of April 17, 1916. The license authorizes the direct diversion of water from Old River in San Joaquin County from about April 1 to October 31 of each year for municipal, domestic, industrial, and irrigation uses.

In 2015, insufficient water was available to satisfy all demands in the Sacramento and San Joaquin River watersheds. The enforcement actions brought by the Division of Water Rights against Byron-Bethany Irrigation District and The Westside Irrigation District were based on evidence that the irrigation districts had diverted water when water was legally unavailable to them based on the priority of their rights. The Division alleged that the irrigation districts had taken water that belonged to more senior right holders.

On July 20, 2015, the Assistant Deputy Director for the Division issued an administrative civil liability complaint against Byron-Bethany Irrigation District. The complaint alleged that Byron-Bethany Irrigation District diverted water without a legal basis of right, from June 13, 2015, until June 25, 2015.

On July 16, 2015, the Assistant Deputy Director for the Division issued a draft cease and desist order against The West Side Irrigation District. The draft order alleged that after May 1, 2015, The West Side Irrigation District was diverting water, or threatening to divert water, that did not belong to it.

The State Water Board has the authority to impose penalties for the diversion or use of water that is not authorized by a valid water right or a permit from the Board. This authority includes the ability to impose fines for diversion of water by any right holder who diverts water that is unavailable based on the priority of the right including “senior” right holders such as pre-1914 and riparian claims of right. This authority allows the State Water Board to administer water rights and enforce the water rights system during drought or in other circumstances when the water supply is insufficient to satisfy all claimants. It is the duty of the Board to protect the interest of the public in the state’s water resources and to prevent the diversion or use of water by those who lack a legal right, or who are diverting or using water outside of the bounds of their right.

Parties that are subject to an enforcement action brought by Division staff may request a hearing to present evidence before board members who serve as impartial hearing officers, weighing the evidence and arguments of the parties. Both Byron-Bethany Irrigation District and The Westside Irrigation District requested a hearing to address the allegations raised in the enforcement actions.

The evidentiary hearings for the enforcement proceedings against Byron-Bethany Irrigation District and The West Side Irrigation District were initially scheduled to occur separately. Upon request of a majority of the parties, the hearing officers consolidated the portions of the hearings that addressed the availability of water for diversion under the irrigation districts’ claims of right.

Accordion #8 Content

The Prosecution Team presented evidence that water was unavailable for diversion under the irrigation districts’ claims of right. To demonstrate that water was unavailable, the Prosecution Team relied upon an analysis of the naturally flowing water available in the Sacramento and San Joaquin River watersheds that the Division had prepared as a forecasting tool. The water availability analysis compared forecasted natural flow to the estimated demand of water users to determine whether water was likely to be available to serve various priorities of rights.

No, the order does not conclude that water was actually available for diversion by the irrigation districts during the time of the alleged unauthorized diversions. The evidence submitted into the record is the only evidence considered by the Board when making a determination in an enforcement action. The evidence presented by the Prosecution Team was not sufficient to demonstrate that water was not available to the irrigation districts, although we know that 2015 marked the fourth consecutive year of drought conditions and there was much more demand than available supply in the Sacramento and San Joaquin River watersheds.

Hearings on enforcement proceedings before the Board are subject to special procedural protections to ensure a fair hearing. Staff of the Division recommending the enforcement orders are separated from the hearing officers and staff advising the hearing officers. Members of the Prosecution Team and other parties to the proceeding are prohibited from having ex parte communications about the proceeding with State Water Board members or any member of the hearing team. The Board considers only the evidence submitted into the record when making its determination. The final order in these matters is an example of the Board’s independent review of actions initiated by the Board’s staff in an impartial administrative hearing setting.

Enforcement of the priority system is essential to the efficient administration of water rights in accordance with the legal entitlements of right holders and the interest of the public in the state’s water resources. The Board intends to hold a future workshop about best practices for conducting water availability analyses for purposes of administering the water rights priority system and other regulatory approaches to the administration of water rights during shortage. Further work needs to be done by the State Water Board in cooperation with stakeholders to refine the water availability analysis for Delta diversions based on improved water accounting, inconsistencies identified during this hearing, and additional tools provided by the Legislature as part of its drought response.

For more information on the role of the State Water Board administering the water rights system, please visit a resource page found here.