Environmental Defense Fund, Inc. v. East Bay Mun. Utility Dist.

• Decision Date: 23 January 1980
• Docket Number: S.F. 23422
• Citation: 605 P.2d 1,26 Cal.3d 183,161 Cal.Rptr. 466
• Court: California Supreme Court
• Parties: , 605 P.2d 1 ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs and Appellants, v. EAST BAY MUNICIPAL UTILITY DISTRICT et al., Defendants and Respondents, County of Sacramento, Intervener and Appellant.

Page 466

161 Cal.Rptr. 466

26 Cal.3d 183, 605 P.2d 1

ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs and Appellants, v. EAST BAY MUNICIPAL UTILITY DISTRICT et al., Defendants and Respondents County of Sacramento, Intervener and Appellant.

S.F. 23422.

Supreme Court of California.

Jan. 23, 1980.

Rehearing Denied Feb. 20, 1980.

[605 P.2d 2] Thomas J. Graff, Morrison, Foerster, Holloway, Clinton & Clark, Morrison & Foerster and F. Bruce Dodge, San Francisco, for plaintiffs and appellants

John B. Heinrich and L. B. Elam, County Counsel, Sacramento, for intervener and appellant.

Evelle J. Younger, George Deukmejian, Attys. Gen., Carl Boronkay, Robert H. O'Brien, R. H. Connett, Asst. Attys. Gen., Roderick E. Walston, Richard C. Jacobs, Nicholas C. Yost, Jan E. Chatten, Deputy Attys. Gen., Henderson, Goodwin, Marking & Rogers and Robert E. Goodwin, Santa Barbara, as amici curiae on behalf of plaintiffs and appellants and intervener and appellant.

John B. Reilley and Robert C. Helwick, Oakland, for defendants and respondents.

Kronick, Moskovitz, Tiedemann & Girard, Adolph Moskovitz and Clifford W. Schulz, Sacramento, as amici curiae on behalf of defendants and respondents.

P. A. Towner, Russell Kletzing, Steven R. Cohen, Sacramento and David B. Anderson, Sacramento, as amici curiae.

CLARK, Justice.

The United States Supreme Court vacated our judgment (20 Cal.3d 327, 142 Cal.Rptr. 904, 572 P.2d 1128), and remanded the cause for consideration in light of California v. United States (1978) 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018, involving the doctrine of federal preemption. ¹

Plaintiffs and intervener appeal from judgment of dismissal following the court's sustaining defendants' demurrers without leave to amend. We reverse the judgment.

Plaintiffs, three corporations and three individuals, are residents of an area served by defendant East Bay Municipal Utility District (EBMUD), a governmental agency. Intervener is the County of Sacramento.

BACKGROUND

Delivering water to approximately 1.1 million persons in Alameda and Contra Costa Counties, EBMUD possesses water rights to 325 million gallons per day (mgd) from the Mokelumne River watershed, its principal source of water. The current average water consumption within EBMUD's service area is 212 mgd.

In the early 1960s EBMUD determined its Mokelumne River supply would be insufficient to meet the needs of its service area by the year 1985. EBMUD thereupon undertook a wide-ranging search for supplemental water supplies. In 1968, it entered an agreement with, among others, the United States Bureau of Reclamation (bureau). By the terms of this agreement, EBMUD obligated itself to perform specified conditions if it later signed a contract with the bureau.

The bureau plans to construct the Auburn Dam and Reservoir with a storage capacity of 2.3 million acre feet. EBMUD contracted with the bureau in December 1970 agreeing to purchase, beginning in the year the bureau completes its Auburn-Folsom-South Project on the American River, up to 150,000 acre feet of water annually for a period of 40 years. This water is to be delivered to EBMUD through the Folsom-South Canal. The bureau has completed The American River rises in the Sierra Nevada and flows generally southwestward. Two of the principal forks join above the site of the proposed Auburn Dam. The third joins at Folsom reservoir about 20 miles downstream from Auburn. From Folsom Dam the American River flows to Lake Natoma formed by Nimbus Dam and then another 23 miles through the valley to Sacramento where it joins the Sacramento River. The "lower" American River has been used by the public for scenic and recreational purposes for many years, and in 1962 the county began developing an area along the river for a regional park spending $6 million.

the canal to the point of delivery to EBMUD. Use of the Folsom-South Canal renders the diverted water unavailable to the lower American River.

Folsom reservoir with a storage capacity of 1 million acre feet has numerous uses, including serving in large part the water needs of the Folsom-South service area, an area south of the American River and east of the Sacramento and San Joaquin Rivers. The area is supplied with water by the Folsom-South Canal diverting water from Lake Natoma, and the canal extends along the easterly side of the service area.

An alternate diversion point for EBMUD water has been contemplated which would make it available to the lower American River. Construction of the Hood-Clay Connection would permit EBMUD to obtain its water from the Sacramento River after the American River flows into it. The proposed Hood-Clay Connection is an integral part of the bureau's proposed East Side Division of the Central Valley Project. The Sacramento River at Hood includes the waters of several other rivers in addition to the American, and construction of the proposed Hood-Clay Connection and the proposed East Side Division would permit moving Sacramento River water around San Francisco Bay to be used not only by EBMUD but also by other agencies south of the bay.

The 1968 agreement obligates EBMUD to pay a pro-rata share of maintenance and operating expenses of the Hood-Clay Connection, if the bureau or the State of California constructed it and certain additional conditions occurred. If the bureau and the state did not construct the connection by 1 January 1979, EBMUD alone or with other local agencies were to undertake construction of the connection if certain determinations were made.

The United States applied to the State Water Resources Control Board (board) for appropriation permits for the Auburn Dam in 1959. (The state had previously applied for permits for an Auburn Dam in 1934.) After hearings in proceedings combining a number of applications, the board determined that there was water available for appropriation from November to June and granted permits in 1970 in Decision No. 1356. The permits do not authorize any appropriation from July to October. The decision recognized that federal, state and local agencies were conducting studies to determine flow requirements for fish and wildlife, recreation, and other beneficial uses. The board concluded that it lacked sufficient information to finally determine the terms and conditions which would reasonably protect such uses, and jurisdiction was reserved to protect recreational, fish, and wildlife uses.

The board also ordered: "11. All rights and privileges under these permits, including method of diversion, method of use and quantity of water diverted, are subject to the continuing authority of the State Water Resources Control Board in accordance with law and in the interest of the public welfare to prevent waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of said water."

Following nine days of hearing in 1971, the board in Decision No. 1400 established minimum flows essential for the protection of fish and wildlife and recreational uses. The board, after referring to the EBMUD contract and other existing and proposed contracts, pointed out that the bureau under prior permits must release from Nimbus Dam all inflow into the Auburn and Folsom reservoirs during the restricted season (July through October) and that such releases are Estimating the ultimate needs at or above Folsom and the ultimate Folsom-South Canal diversions, including the diversion to EBMUD, the board concluded that the bureau could release from Nimbus sufficient water for recreational purposes without impairing its ability to meet full requirement from the Folsom-South areas and that a reduced flow in very dry years apparently would create recreational problems of a limited-term duration without permanent damage. In 15 to 20 years the Hood-Clay Connection would be needed to pump water from the Sacramento River to the Folsom-South Canal.

greater than those under natural conditions because hydroelectric developments of Sacramento Municipal Utility District and Placer County Water Agency serve to increase[605 P.2d 4] the natural flows in the restricted period. ²

The board retained jurisdiction over the permits for recreational purposes because the flow in the lower American River will change as a result of diversions above and below Nimbus.

Numerous governmental agencies, private individuals and organizations participated in the hearings. EBMUD, the bureau, and seven other public agencies sought reconsideration but the board denied reconsideration with minor modifications. None of the parties seeking reconsideration claimed that the required flows for recreational uses were insufficient or that EBMUD should have been required to use a lower diversion point.

Although one of the plaintiffs and the County of Sacramento participated in the administrative proceedings, neither sought rehearing. In a mandamus action brought by several San Joaquin County agencies to review Decision No. 1400, County of Sacramento intervened claiming the decision was lawful.

THE COMPLAINTS

The complaints allege: EBMUD's agreements and the bureau's completion of the Auburn-Folsom-South Project will diminish flows on the lower American River, injuring recreational opportunity, increasing salination, accelerating wild river destruction and polluting San Francisco Bay. Completion of the project will also cause loss of whitewater rafting opportunities and stream fishing on the upper American River.

EBMUD might have acquired water from the federal government at a point below the confluence of the Sacramento and lower American Rivers just as economically as from the diversion point actually chosen. As recognized by Decision No. 1400 of the California Water Resources Control Board, the lower diversion point would not impair the recreational use of the American River. EBMUD's agreement contributed to the likelihood the bureau will complete its East Side Division increasing salination of the Delta area.

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