State Water Resources Control Bd. Cases

• Citation: 136 Cal.App.4th 674,39 Cal.Rptr.3d 189
• Decision Date: 09 February 2006
• Docket Number: No. C044714.,C044714.
• Court: California Court of Appeals
• Parties: STATE WATER RESOURCES CONTROL BOARD CASES.

39 Cal.Rptr.3d 189

136 Cal.App.4th 674

STATE WATER RESOURCES CONTROL BOARD CASES.

No. C044714.

Court of Appeal, Third District.

February 9, 2006.

Baker, Manock & Jensen, John L.B. Smith, Christopher L. Campbell, Glenn J. Holder, and Kathleen A. Meehan, Fresno, for Plaintiffs and Appellants Angela Anderson et al.

Nomellini, Grilli & McDaniel, Dante John Nomellini, Dante John Nomellini, Jr.; John Herrick, Stockton; and Thomas M. Zuckerman, for Plaintiffs and Appellants Central Delta Water Agency, R.C. Farms, Inc., Reclamation District No. 2072, Reclamation District No. 2039, Zuckerman-Mandeville, Inc., and South Delta Water Agency.

Law Offices of Reid W. Roberts and Reid W. Roberts, for Plaintiff and Appellant Central San Joaquin Water Conservation District.

Richard E. Nosky, Jr., City Attorney, Douglas H. Calkins and John Luebberke, Deputy City Attorneys, for Plaintiff and Appellant City of Stockton.

Law Offices of Stephan C. Volker, Stephan C. Volker, San Francisco, Joshua A.H. Harris, Oakland, and Marnie E. Riddle, for Plaintiffs and Appellants Golden Gate Audubon Society, Marin Audubon Society, San Joaquin Audubon Society, California Sportfishing Protection Alliance, and Committee to Save the Mokulumne.

Neumiller & Beardslee, Thomas J. Shephard, Sr., and Deeanne Gillick, Stockton, for Plaintiffs and Appellants San Joaquin County and San Joaquin County Flood Control and Water Conservation District.

Squire, Sanders & Dempsey, Kevin T. Haroff and Olive Lee Thaler; Sonnenschein Nath & Rosenthal, Kevin T. Haroff, San Francisco, for Plaintiff and Appellant Santa Clara Valley Water District.

Herum Crabtree Brown, Jeanne M. Zolezzi, Stockton, Karna E. Harrigfeld, and Jennifer L. Spaletta, for Plaintiff and Appellant Stockton East Water District.

Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O'Hanlon, Jon D. Rubin, and

Andrew P. Tauriainen, Sacramento, for Plaintiff and Appellant Westlands Water District.

Bill Lockyer, Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Mark W. Poole and Clifford T. Lee, Deputy Attorneys General, for Defendant and Appellant State Water Resources Control Board.

O'Laughlin & Paris, Tim O'Laughlin and William C. Paris, III, Chico, for Real Parties in Interest and Appellants San Joaquin River Group Authority, Oakdale Irrigation District, Modesto Irrigation District, Turlock Irrigation District, Merced Irrigation District, San Joaquin River Exchange Contractors Water Authority, Central California Irrigation District, San Luis Canal Company, Firebaugh Canal Water District, Columbia Canal Company, and Friant Water Users Authority, City and County of San Francisco.

Bold, Polisner, Maddow, Nelson & Judson and Carl P.A. Nelson, Walnut Creek, for Real Party in Interest and Respondent Contra Costa Water District.

Nancy Saracino, David B. Anderson, and David Sandino, Sacramento, for Real Party in Interest and Respondent Department of Water Resources.

Robert C. Helwick, Oakland, Craig S. Spencer, and Fred S. Etheridge, for Real Party in Interest and Respondent East Bay Municipal Utility District.

Best Best & Krieger, Gregory K. Wilkinson, Riverside and L. John Nelson IV, for Real Parties in Interest and Appellants State Water Contractors, Kern County Water Agency, and Metropolitan Water District of Southern California.

Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O'Hanlon, Jon D. Rubin, and Andrew P. Tauriainen, Sacramento, for Real Parties in Interest and Respondents Westlands Water District, San Luis & Delta-Mendota Water Authority, and San Benito County Water District.

ROBIE, J.

The history of California is written on its waters — from the Eel River, to the Salton Sea, to the Colorado River, to Lake Tahoe. But no area has been more critical than the Sacramento and San Joaquin Rivers and their great Delta and San Francisco Bay estuary.

Before us are eight appeals and three cross-appeals in seven coordinated cases known collectively as the "SWRCB Cases," Judicial Council Coordinated Proceeding No. 4118. These cases arose out of an omnibus water rights proceeding before the State Water Resources Control Board (the Board) that ostensibly began with notices issued in July 1995, and ostensibly ended in March 2000 with Revised Water Right Decision 1641 (Decision 1641).

In truth, however, the water rights proceeding from which these appeals arose is but a small part of a process that has been ongoing for more than four decades to solve the problems of water quality in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary.¹ In the water rights proceeding, the Board sought to allocate responsibility among various water rights holders for meeting the flow-dependent water quality objectives in the Water Quality Control Plan for the Bay-Delta, which the Board had approved in May 1995 (the 1995 Bay-Delta Plan).² As will be seen Decision 1641 assigned much of that responsibility to the two great water projects in the state — the Central Valley Project (CVP), operated by the United States Bureau of Reclamation (the Bureau), and the State Water Project (SWP), operated by the Department of Water Resources (the Department) — which, in normal water years, export about 30 percent of the water that reaches the Delta. Many of the issues on appeal involve this allocation of responsibility.

The water rights proceeding giving rise to these appeals also dealt with two other long-standing issues: first, a petition filed by the Bureau and the Department in 1995 to use each other's points of diversion in the southern Delta (the joint points of diversion petition), which had its origin in a similar petition filed by the Bureau in 1981; and second, a petition filed by the Bureau in 1985 (and thereafter amended) to change the places of use and conform the purposes of use in many of its CVP permits (the change petition).

On the joint points of diversion petition, the Board, in Decision 1641, conditionally granted the Bureau and the Department the right to use each other's pumping plants in the southern Delta to export water to the south and west. On the change petition, the Board took two actions. Decision 1641 approved the Bureau's request to conform the purposes of use in its CVP permits, which had the effect of adding fish and wildlife enhancement as an authorized purpose of use for water appropriated under 14 of those permits. Decision 1641 also approved the Bureau's request to change the places of use in its CVP permits, but only in part. The Board authorized the addition of lands that were previously outside the permits' authorized places of use but were already being served by CVP water, subject to mitigation requirements imposed on the Bureau for all of that land first converted to irrigated agricultural use by the delivery of that water. The Board did not, however, authorize the addition of lands that were not already being served by CVP water but were within the service districts of various CVP contractors. Instead, the Board determined those lands could be added later on a case-by-case basis.

Not surprisingly, given that water from the Delta is diverted to meet the needs of two-thirds of the population of California and to irrigate 4.5 million acres, many individuals and entities interested in Delta water appeared before the Board in the water rights proceeding at issue here. Again not surprisingly, not all of those parties were satisfied with the Board's Decision 1641, which is what brings us here today. Originally, four cases challenging different aspects of the Board's decision were coordinated and assigned to Judge Roland L. Candee. Ultimately, seven more cases were added, and three were dismissed, leaving eight.

In May 2003, Judge Candee issued his statement of decision in the coordinated cases, upholding Decision 1641 with two exceptions. First, Judge Candee concluded the Board erred when it failed to allocate responsibility for meeting all of the flow objectives in the 1995 Bay-Delta Plan.³ Second, he concluded the Board erred as to the change petition, when it refused to include all of the lands within the service area of Westlands Water District (Westlands) for authorized place of use in the Bureau's CVP permits without any mitigation requirement. This latter conclusion rested on Judge Candee's determination that a 1965 statute that merged Westlands with another water district⁴ "effectuated a statutory authorization for the delivery of federal CVP water to all of the lands of the combined ... district."

From the resulting judgments, eight timely notices of appeal and three timely notices of cross-appeal were filed in seven of the coordinated cases. The Board and two other groups of parties challenge Judge Candee's ruling that Decision 1641 failed to implement all of the flow objectives in the 1995 Bay-Delta Plan. The Board also challenges Judge Candee's ruling that it must expand the authorized place of use in the Bureau's CVP permits to include all of the Westlands service area without any mitigation requirement. Various other parties challenge other aspects of Judge Candee's ruling, in which he upheld the remainder of Decision 1641. These challenges raise numerous issues regarding the law of water rights, as well as issues regarding the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).⁵

Following this introduction, we will begin by setting forth the factual and procedural background of the coordinated cases, starting with brief descriptions of the CVP and SWP and continuing with a summary of the efforts to address the problems of water quality in the Delta, which led to the Board's adoption of the 1995 Bay-Delta Plan. From there, we will summarize the underlying water rights proceeding in which the Board sought to allocate responsibility for meeting the flow-dependent objectives in the 1995 Bay-Delta Plan among the various water rights holders with interests in water that flows into the Delta.⁶ We will...