El Dorado Irr. Dist. v. Water Res. Control

• Decision Date: 08 September 2006
• Docket Number: No. C046211.,C046211.
• Citation: 142 Cal.App.4th 937,48 Cal.Rptr.3d 468
• Court: California Court of Appeals Court of Appeals
• Parties: EL DORADO IRRIGATION DISTRICT, Plaintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant, State Water Contractors, Inc., et al., Real Parties in Interest and Appellants, Department of Water Resources, Real Party in Interest and Respondent. El Dorado County Water Agency, Plaintiff and Appellant, v. State Water Resources Control Board, Defendant and Appellant, State Water Contractors, Inc., et al., Real Parties in Interest and Appellants, Department of Water Resources, Real Party in Interest and Respondent.

48 Cal.Rptr.3d 468

142 Cal.App.4th 937

EL DORADO IRRIGATION DISTRICT, Plaintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant, State Water Contractors, Inc., et al., Real Parties in Interest and Appellants, Department of Water Resources, Real Party in Interest and Respondent.

El Dorado County Water Agency, Plaintiff and Appellant, v. State Water Resources Control Board, Defendant and Appellant, State Water Contractors, Inc., et al., Real Parties in Interest and Appellants, Department of Water Resources, Real Party in Interest and Respondent.

No. C046211.

Court of Appeal, Third District.

September 8, 2006.

Somach, Simmons & Dunn, Sandra K. Dunn, Nicholas A. Jacobs, Sacramento; and Frederic L. Schaefer, San Francisco, for Plaintiff and Appellant El Dorado County Water Agency.

Somach, Simmons & Dunn, Sandra K. Dunn, Nicholas A. Jacobs, Sacramento; and Thomas D. Cumpston, Placerville, for Plaintiff and Appellant El Dorado Irrigation District.

Christopher D. Williams, San Andreas, for Mountain Counties Water Resources Association as Amicus Curiae on behalf of Plaintiffs and Appellants.

Mason, Robbins, Gnass & Browning and Arthur F. Godwin, Merced, for Regional Council of Rural Counties as Amicus Curiae on behalf of Plaintiffs and Appellants.

Danial F. Gallery, Sacramerto, and Jason P. Cashman, for Tuolumne Utilities District as Amicus Curiae on behalf of Plaintiffs and Appellants.

Herum Crabtree Brown and Jeanne Zolezzi, Stockton, for Stockton East Water District as Amicus Curiae on behalf of Plaintiffs and Appellants.

Downey Brand, Kevin M. O'Brien, Sacramento, and Robia S. Chang, Walnut Creek, for Northern California Water Association as Amicus Curiae on behalf of Plaintiffs and Appellants.

Thomas J. Graff for Environmental Defense as Amicus Curiae on behalf of Plaintiffs and Appellants.

Bartkiewicz, Kronick & Shanahan, Ryan S. Bezerra and Paul M. Bartkiewicz, Sacramento, for Regional Water Authority as Amicus Curiae on behalf of Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Marc N. Melnick and Tiffany Yee, Deputy Attorneys General,

for Defendant and Appellant State Water Resources Control Board.

Nancy Saracino, David B. Anderson, and David Sandino, Sacramento, for Department of Water Resources as Amicus Curiae on behalf of Defendant and Appellant, and Real Party in Interest and Respondent Department of Water Resources.

Best Best & Kreiger, Gregory K. Wilkinson and Eric L. Garner, Riverside, for Real Party in Interest and Appellant State Water Contractors.

Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O'Hanlon and Andrew P. Tauriainen, Sacramento, for Real Party in Interest and Appellant Westlands Water District.

ROBIE, J.

In this water rights case, El Dorado Irrigation District and El Dorado County Water Agency (jointly El Dorado) sought and received from the State Water Resources Control Board (the Board) the assignment of an application to appropriate water from the South Fork American River that was filed by the state more than 75 years ago, in 1927. The benefit of the assignment of this state-filed application was that El Dorado's right to divert water would be deemed senior to other appropriative rights based on applications filed after 1927.

Ultimately, however, the Board decided to include in El Dorado's permit a standard term (term No. 91) that requires the appropriator to curtail its diversion of water when the United States Bureau of Reclamation (the Bureau) and/or the Department of Water Resources (the Department) are releasing stored water from the Central Valley Project (the CVP) and/or the State Water Project (the SWP) to meet water quality objectives in the Sacramento-San Joaquin Delta.¹ The Board included this term in El Dorado's permit even though other water users in the Delta watershed with appropriative water rights based on applications filed after 1927 are not bound by this restriction.

El Dorado brought this administrative mandamus proceeding in the superior court to challenge the Board's inclusion of term No. 91 in its permit. The trial court agreed with El Dorado that by including term No. 91 in El Dorado's permit, but not in the permits and licenses of other junior appropriators, the Board "contravened . . . critical statutory policies for the appropriation of water: a rule of priority set forth in Water Code section 10500 and area of origin protections set forth in Water Code sections 10505, 10505.5 and 11460-11[4]63." Accordingly, the trial court ordered the issuance of a writ of mandate directing the Board to set aside its decision to include term No. 91 in El Dorado's permit, although the Board could conduct further proceedings on El Dorado's petition for assignment of the state-filed application to determine appropriate conditions relating to El Dorado's responsibility for Delta water quality.

The Board and two other parties with interests in water from the projects— Westlands Water District (Westlands) and State Water Contractors—have appealed from the judgment, arguing the trial court erred in directing the Board to remove term No. 91 from El Dorado's permit.² In turn, El Dorado has cross-appealed from the judgment to attack the interlocutory ruling of the trial court that made the Bureau, the Department, Westlands, and State Water Contractors parties to the action.

As will be seen, we agree with the trial court that the Board abused its discretion in imposing term No. 91 on El Dorado's permit, when it has not included that term in the permits and licenses of appropriators in the Delta watershed whose rights are junior to those of El Dorado. The Board's action contravened the rule of priority, which is one of the fundamental principles of California water law, because appropriators junior to El Dorado can divert water when El Dorado cannot. Although the rule of priority is not absolute, the Board is obligated to protect water right priorities unless doing so will result in the unreasonable use of water, harm to values protected by the public trust doctrine, or the violation of some other equally important principle or interest.

Such is not the case here. To the extent the restriction on El Dorado's right to divert water serves to protect water stored by the projects for export to other regions of the state, the Board has not shown that its interest in protecting the projects' stored water is of greater importance than the rule of priority. Similarly, although the Board has a legitimate interest in requiring El Dorado to contribute natural flow that it would otherwise divert toward meeting water quality objectives in the Delta, the Board has not shown that its interest in requiring a contribution from El Dorado justifies the subversion of the rule of priority, which has occurred here only because the Board has chosen not to seek similar contributions from what appear to be hundreds of appropriators in the Delta watershed junior to El Dorado. Indeed, by imposing term No. 91 on El Dorado but not on other, junior appropriators, the Board's goal of helping meet Delta water quality objectives with natural flow, rather than the projects' stored water, is undercut because natural flow that El Dorado bypasses to improve water quality in the Delta can be diverted by those junior appropriators. Thus, it is questionable the extent to which the limitation imposed on El Dorado will actually serve its ostensible purposes. For this reason, we conclude the Board abused its discretion because the imposition of term No. 91 in these circumstances subverted the rule of priority without adequate justification.

We disagree with the trial court that the Board's action contravened the county of origin and area of origin statutes in the Water Code, but we likewise reject any argument that those statutes require the inclusion of term No. 91 in El Dorado's permit.

Finally, we conclude El Dorado does not have standing to appeal from the judgment in its favor to challenge an adverse interlocutory ruling ordering El Dorado to join the Bureau, the Department; Westlands, and State Water Contractors as real parties in interest.

Accordingly, we will dismiss El Dorado's cross-appeals and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The History Of Comprehensive Water Planning In California

This case has its roots in what is perhaps California's most fundamental water problem, which Erwin Cooper described as "maldistribution of moisture in relation to human needs." (Cooper, Aqueduct Empire (1968) p. 35.) As former Presiding Justice John T. Racanelli explained in United States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 98 227 Cal.Rptr. 161: "California's critical water problem is not a lack of water but uneven distribution of water resources. The state is endowed with flowing rivers, countless lakes and streams and abundant winter rains and snowfall. But while over 70 percent of the stream flow lies north of Sacramento, nearly 80 percent of the demand for water supplies originates in the southern regions of the state."

Efforts to solve this problem date back more than 100 years. In the early 1870's, President Ulysses Grant appointed a commission under the leadership of Colonel B.S. Alexander to study California's "irrigation problem." (Cooper, Aqueduct Empire, supra, p. 42.) The Alexander Commission "was the first to point out . . . that the Central Valley's most bountiful water supplies lay in the Sacramento River region, in contrast to potential shortages in the valley of the San Joaquin." (Id. at pp. 42-43.) The Commission "made several proposals for basin-wide storage and distribution of water." (Id. at p. 42.)

The work of the Alexander Commission was followed in the late 1870's by the work of William Hammond Hall, the first State Engineer, who was appointed to investigate, among other things, "the...