Tracy Press
March 25, 2016

The opening statements by the two lead attorneys launched what could turn out to be as many 11 days of legal and technical testimony over the charges filed against the two irrigation districts last summer.

The joint hearing will determine if the charges of what the state considers unauthorized pumping of Delta water by the two districts should be affirmed by the full State Water Board, amended or dismissed.

The first hearing phase, which began Monday and continued through Wednesday, will determine if there was adequate water available last summer for the districts to pump river water for a short period of time. A second phase will deal with the circumstances of the charges leveled against the districts in July.
Those circumstances include whether the state can fine BBID up to $1.5 million for “unauthorized pumping,” whether the 2014 WSID agreement with the city of Tracy to pump water out of Old River was legal and whether pumping water for several days in June 2015 violated water law.

Whether arguments will continue the full 11 days was briefly placed into doubt Tuesday afternoon, when the hearing officer for the joint BBID-WSID first-phase hearing, Tam Doduc, a member of the State Water Board, called a timeout in the face of a motion filed by irrigation district attorneys to dismiss the cases. They claimed the prosecutors had not come close to proving there was an inadequate water supply in the Delta last summer.

Each side was given 45 minutes Wednesday morning to submit arguments for and against the motion. Then Doduc called for a recess, and on reopening the hearing, he did not issue a decision on the motion.

Testimony and cross-examinations continued Wednesday, but at the end of that session, scheduled sessions on Thursday and Friday were canceled and a recess called until Monday morning.

Basically, the State Water Board attorneys contended — with the use of projected slides — that although there was water in the Delta last summer, it had all been earmarked for use by water users with superior water rights and agreements, including Delta farmers who had voluntarily pledged last summer to reduce pumping of water from Delta channels by 25 percent.

Irrigation district attorneys responded that State Water Board engineers underestimated the “natural flow” of river water into the Delta — water not aided by state and federal reservoir releases — and did not adequately consider “tail water” that flows from irrigated land into the Delta or water from underground aquifers.

The water board staff also overestimated demand for Delta water, according to the irrigation district attorneys, who noted that the Delta is not only a conduit for water from tributaries but also a natural reservoir of uncommitted water.
This week’s sessions were conducted in a hearing room of the striking Joe Serna Jr. California Environmental Protection Act building in downtown Sacramento.

Many of the 100 or so people in the audience were attorneys or managers of water interests throughout the state. Their dark suits contrasted with another contingency in the back of the room: jeans and work jackets worn by farmers from the two local irrigation districts.
The prosecution’s lead attorney, Andrew Tauriainen, presented the state’s case Monday morning and again on Wednesday. His testimony was backed by two staff attorneys and water experts.

The defense’s legal team includes Dan Kelly, a tall, laser-focused Sacramento attorney representing BBID; Jeanne Zolezzi, a Stockton attorney representing WSID; and Jennifer Spaletta, a Lodi attorney representing the Central and South Delta water agencies.

Kelly made the opening statement for the two irrigation districts. Zolezzi later presented a vigorous defense of West Side’s agreement with city of Tracy to pump water from Old River equal to the city’s discharges of treated wastewater, and Spaletta methodically chipped away at many of the state’s positions during Tuesday cross-examination.

As the proceedings continued, Kelly, Zolezzi and Spaletta often conferred on the side of the hearing room to respond to developing testimony, while Tauriainen, an attorney with the State Water Board’s Division of Water Rights, held periodic whispered discussions with his support attorneys on the other side of the room.

Concerns of farm communities about impacts of the curtailment of water in both districts was voiced in the opening session by Mario Arnaudo, a fourth-generation member of the Tracy-based farming firm that has a part of its land in the Byron Bethany district. He said last year, when water was curtailed, required reductions in livestock and row crops and a layoff of two employees.

“If we don’t get water this year, we will have to lay off the rest of our men. These men are the providers for their families. If they don’t make money, they do not feed their families…,” he said. “I don’t think the state realizes the importance of agriculture. Without it, our economy will collapse.”