Bank of America v. State Water Resources Control Bd.
| Citation | 116 Cal.Rptr. 770,42 Cal.App.3d 198 |
| Parties | BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Corporate Co-trustee of the Pension Trust Fund for Operating Engineers, Plaintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Respondent. Civ. 14001. |
| Decision Date | 18 September 1974 |
| Court | California Court of Appeals |
Evelle J. Younger, Atty. Gen., by John Morris, Deputy Atty. Gen., Sacramento, for defendant and respondent.
Bank of America (hereinafter 'Bank') appeals following judgment dismissing its petition filed under Code of Civil Procedure section 1094.5, for writ of mandate against State Water Resources Control Board (hereinafter 'Board'). The petition before us initially challenged the validity of two conditions which the Board attached to its decision granting Bank's application to appropriate water. The parties having resolved their disagreement as to one of the conditions, Bank, accordingly, has abandoned its attack as to it. The remaining condition, focal point of our inquiry, was designated as condition 11, and requires public access to certain reservoirs on the Bank's property.
Bank's contentions are:
(1) The trial court incorrectly held that substantial evidence exists in the record supporting the imposition of the challenged condition number 11;
(2) The Board acted in excess of its jurisdiction in imposing condition 11; and
(3) The trial court applied an improper standard of review.
We will conclude that the trial court applied the proper standard of review. We conclude further that the Board has the jurisdiction to condition an appropriation permit on public access to the water so appropriated, but that the record herein lacks substantial evidence in support of the imposition of the condition.
Bank is corporate co-trustee of the Pension Trust Fund for Operating Engineers, a fund established to provide pension benefits for employees represented by Operating Engineers Local Union No. 3. As such trustee, Bank owns approximately In the course of planning for the water supply of Rancho Murieta, Bank filed with the Board application No. 23416 for the appropriation from the Cosumnes River of six cubic feet of water per second (cfs), plus 3,900 acre-feet per annum (afa) of water, for irrigation, municipal, recreational and industrial purposes. The proposed appropriation constitutes Rancho Murieta's principal water source. Additionally, Bank filed applications No. 23417, 23418 and 23419 for appropriation, respectively, of lesser volumes of water from certain unnamed streams flowing through its property. These applications proposed that this latter volume of water be diverted and stored for recreation and stock watering purposes in three small reservoirs called Laguna Joaquin, Peralta, and Clementia (or Chemeketa). Both the unnamed streams and the three reservoirs are located on Bank's property. Application 23416 drew several protests, among them one from the California Department of Fish and Game (hereinafter 'Fish & Game'). By the time of the Board's hearing all but Fish & Game had withdrawn their protests.
3,500 acres of land in eastern Sacramento County on both sides of the Cosumnes River. This property, commonly known as Rancho Murieta, was purchased by the Fund for the purposes of investment and use by the Union as a center for the training and retraining of apprentices, preapprentices, and journeymen operating engineers. In furtherance of the investment purpose, a land use plan was prepared and approved by the County of Sacramento (hereinafter 'County') for the development of Rancho Murieta. The general plan adopted by County envisions an eventual population of 25,000 in 18 to 22 years. The first phase of construction, the training facilities building, had been completed at the time of the hearings hereinafter described.
Rancho Murieta's ultimate total annual water requirements for domestic, industrial and commercial use, evaporation and seepage loss from the reservoirs, and golf course irrigation was estimated to be 6,368 acre feet. Under application 23416 it was proposed that water be diverted from the Cosumnes River and carried by gravity flow to two main holding reservoirs, Chesbro and Guadalupe, with a total storage capacity of 3,900 acre feet. From these reservoirs the water, after passing through a water treatment plant, it was contemplated would then be distributed throughout the project. As we have noted, the smaller reservoirs utilized for recreation and stock watering would be filled primarily by damming natural runoff which would otherwise flow into the Cosumnes. Occasionally, during the dry season, it was projected that the level of these three small reservoirs would be maintained by pumping water from the main holding reservoirs. Bank's principal witness during the Board hearing gave equivocal responses when asked whether there was planned public access to the three recreational and stock watering reservoirs.
Since, as we have noted, by the time of the Board hearing on application 23416, the only protestant was Fish & Game, the principal portion of the hearing was directed at possible effect of the diversion upon the fish resources in the Cosumnes River.
In August 1971, the Board issued its decision approving the applications to appropriate water. The allowable period of diversion for irrigation, municipal, recreational and stock watering purposes was limited. The Board noted various protests had been filed by other water users from the Cosumnes River, industrial and governmental, who claimed riparian, appropriative and other landowner rights. The Board further noted that all protesters, including Fish & Game had withdrawn their protests. Fish & Game had reached a written agreement with Bank which assured a minimum flow in the Cosumnes to protect fish life, and provided that its terms would be included in any permits issued on the applications to appropriate water.
The Board found that sufficient water was available from the small unnamed Pursuant to the findings, the Board ordered that the applicant's petitions be granted subject to several conditions, among them, central to our consideration, condition 11 which reads in full as follows: 'The reservoir(s) shall be kept open to the public for recreational use subject to a reasonable charge for any services or facilities that are provided by permittee; provided, however, that this condition shall not apply to reservoirs used solely for domestic and municipal water supplies authorized by the permit issued pursuant to Application 23416.' The dispute centers on the foregoing language which has been emphasized by us.
streams to provide the water sought in applications 23417 through 23419. Similarly, the Board found that sufficient unappropriated water was available in the Cosumnes River between November 1 and May 31 to satisfy Bank's requirements under application 23416; that the intended use of the water was beneficial; and that the Bank's master plan for the Rancho Murieta development contemplated setting aside 175 acres for dedication as a parkway along the Cosumnes River. In its decision the Board stated,
The Bank thereafter filed a petition for partial reconsideration insofar as the Board's order required public access to the offstream reservoirs (condition 11). In response to the petition, the Board amended its decision in pertinent part herein as follows: 'Condition 11
'The record is conflicting as to the petitioner's intent with regard to public access to the project reservoirs and the petition correctly reflects this fact. Nevertheless, this condition was not included because of testimony of the petitioner's witness but for the following reason. The Board's Order will allow the petitioner to reduce the flow of the Cosumnes River up to 46 cfs for diversion to offstream storage, part of which will be to provide some 650 acrefeet annually for reservoir evaporation and seepage to maintain the level for recreational purposes. It is difficult to evaluate the effect that this reduction of flow in the river may have on the fishery, but the 'trade-off' will be more nearly equal if the benefits of the diversion for recreation are made public. Accordingly, the petition to delete Condition 11 of the Order is denied and the following sentence is deleted from paragraph 11, page 6 of the decision: 'Public access to all of the reservoirs is planned (RT 37)."
In different sequence, we consider Bank's contentions.
The Supreme Court in Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242, has delineated the applicable standards of review following an administrative order or decision pursuant to Code of Civil Procedure section 1094.5. In Bixby, the court stated: ...
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