U.S. v. State Water Resources Control Bd.

CourtCalifornia Court of Appeals
Writing for the CourtRACANELLI
Citation182 Cal.App.3d 82,227 Cal.Rptr. 161
PartiesUNITED STATES of America et al., Plaintiffs and Appellants, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant; California Department of Water Resources, Metropolitan Water District of Southern California, and Contra Costa Water District, Intervenors and Appellants. (And 7 other cases) * AO 27690, AO 30014.
Decision Date28 May 1986

Page 161

227 Cal.Rptr. 161
182 Cal.App.3d 82
UNITED STATES of America et al., Plaintiffs and Appellants,
v.
STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant;
California Department of Water Resources, Metropolitan Water District of Southern California, and Contra Costa Water District, Intervenors and Appellants.
(And 7 other cases) *
AO 27690, AO 30014.
Court of Appeal, First District, Division 1, California.
May 28, 1986.
As Modified on Denial of Rehearing
June 25, 1986.
Review Denied Sept. 18, 1986.

[182 Cal.App.3d 96]

Page 164

F. Henry Habicht, II, Asst. Atty. Gen., Washington, D.C., Donald B. Ayer, U.S. Atty., Sandra K. Dunn, U.S. Dept. of Justice, Sacramento, Thomas H. Pacheco, Robert L. Klarquist, U.S. Dept. of Justice, Washington, D.C., David E. Lindgren, William Devine, U.S. Dept. of Interior, Sacramento, for U.S.

Kenneth A. Kuney, Berryhill & Kuney, Tulare, McCormick, Ide & Kabot, Visalia, James Ganulin, Fresno, for Cent. Valley East Side Project Assn., et al.

Clifford W. Schulz, Robin Leslie Stewart, Kronick, Moskovitz, Tiedemann & Girard,

Page 165

Sacramento, for Kern County Water Agency.

James G. McCain, Coronado, Michael N. Nordstrom, Corcoran, for Tulare Lake Basin Water Storage Dist.

Thomas M. Zuckerman, Feldman, Waldman & Kline, Dante J. Nomellini, Nomellini & Grilli, Stockton, Christopher A. Lee, Walnut Grove, John F. Cheadle, County Counsel, Rebecca A. Davis, Deputy County Counsel, Richard W. Dickenson, Stockton, for San Joaquin County Flood & Water Conser. Dist. et al.

David Whitridge, Wilson & Hoslett, Stockton, for South Delta Water Agency.

Cressey H. Nakagawa, Victor J. Westman, County Counsel, Edward V. Lane, Jr., Deputy County Counsel, San Francisco, for Contra Costa County Water Agency.

John K. Van de Kamp, Atty. Gen., R.H. Connett, Asst. Atty. Gen., Roderick E. Walston, M. Anne Jennings, Clifford T. Lee, Deputy Attys. Gen., San Francisco, for State Water Resources Control Bd.

Robert W. James, Chief Counsel, Russell Kletzing, Asst. Chief Counsel, Marcia J. Steinberg, California Dept. of Water Resources, Sacramento, for State Dept. of Water Resources.

Warren J. Abbott, Gen. Counsel, Victor E. Gleason, James Roberts, Deputy Gen. Counsels, Los Angeles, Arthur L. Littleworth, Best, Best & Krieger, Riverside, Bruce C. Atkins, Law Offices of Edward F. Taylor, Redlands, Stanley C. Lagerlof, Los Angeles, Maurice C. Sherrill, James W. Dilworth, Riverside, Ralph B. Helm, Westlake Village, for Metropolitan Water Dist.

Frederick Bold, Jr., Bold & Polisner, Walnut Creek, for Contra Costa Water Dist.

[182 Cal.App.3d 97] Gordon E. Davis, William H. Booth, Brobeck, Phleger & Harrison, San Francisco, for Fibreboard.

W. Reece Bader, George A. Yuhas, Orrick, Herrington, Rowley & Sutcliff, San Francisco, for Crown Zellerbach.

Thomas J. Graff, John W. Krautkraemer, Berkeley, E. Clement Shute, Jr., Shute, Mihaly & Weinberger, San Francisco, for amici curiae.

RACANELLI, Presiding Justice.

This appeal raises a number of novel and complex questions concerning the interrelationship of the law of water quality and the law of water rights. The coordinated cases arise out of efforts by the State Water Resources Control Board (the Board) to set new water quality standards for the Sacramento-San Joaquin Delta in order to take account of the combined effects upon the Delta of the state's two massive water projects: the Central Valley Project (CVP) and the State Water Project (SWP), operated by the U.S. Bureau of Reclamation (U.S. Bureau or Bureau) and the California Department of Water Resources (DWR), respectively.

The Sacramento-San Joaquin Delta serves as a conduit for the transfer of water by the statewide water projects. Both the CVP and the SWP divert water from the rivers that flow into the Delta and store the water in reservoirs. Quantities of this stored water are periodically released into the Delta. Pumps situated at the southern edge of the Delta eventually lift the water into canals for transport south to the farmers of the Central Valley and the municipalities of Southern California. Water which is neither stored nor exported south passes through the Delta where it is used by local farmers, industries and municipalities. The excess flows out into the San Francisco Bay.

The U.S. Bureau and the DWR hold a combined total of 34 permits for various units of the CVP and SWP to authorize diversion and use of the Delta's waters. These permits were issued by the Board and its predecessors over a period of years extending through 1970.

In 1976 the Board convened a hearing for two declared purposes: to formulate a water quality control plan for the Sacramento-San Joaquin Delta and to determine whether the water use permits held by the U.S. Bureau and the DWR should be amended to implement the plan. In August 1978,

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following an extensive evidentiary hearing over an 11-month period, the Board adopted the "Water Quality Control Plan for the Sacramento-San [182 Cal.App.3d 98] Joaquin Delta and Suisun Marsh" (hereafter sometimes called the Plan) and "Water Right Decision 1485" (hereafter sometimes called the Decision or D 1485).

In the Plan the Board established new water quality standards for salinity control and for protection of fish and wildlife in the Delta and Suisun Marsh. In D 1485 the Board modified the permits held by the U.S. Bureau and the DWR, compelling the operators of the projects to adhere to the water quality standards as set out in the Plan. In this appeal we are requested to review the validity of those actions: namely, the Board's establishment of water quality objectives in the Plan and its modification of the water use permits in the Decision.

We will conclude, inter alia, that the modification of the projects' permits in order to implement the water quality standards was a proper exercise of the Board's water rights authority. We will also conclude that in establishing only such water quality standards as will protect Delta water users against the effects of project activities, the Board misconceived the scope of its water quality planning function. Finally, we will determine that the Board has the power and duty to provide water quality protection to the fish and wildlife that make up the delicate ecosystem within the Delta.

BACKGROUND

The Water Projects

The history of California water development and distribution is a story of supply and demand. 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. And because of the semi-arid climate, rainfall is at a seasonal low during the summer and fall when the demand for water is greatest; conversely, rainfall and runoff from the northern snowpacks occur in late winter and early spring when user demand is lower. (See 1 Rogers & Nichols, Water for California (1967) pp. 20, 26-33, 43-46 [hereafter Rogers & Nichols].) Largely to remedy such seasonal and geographic maldistribution, while simultaneously providing relief from devastating floods and droughts, the California water projects were ultimately conceived and formed.

In 1933 the California Legislature adopted a plan for transfer of surplus water from the Sacramento River and its northern tributaries to the water-[182 Cal.App.3d 99] deficient areas of the San Joaquin Valley through construction of a "Central Valley Project": Shasta Dam, the central feature, to store and regulate waters of the Sacramento River; Friant Dam, on the western edge of the Sierra, to divert water from the San Joaquin River to southern regions of the valley; and various other units designed to transfer water from the Sacramento River system to the San Joaquin Valley. (Wat.Code, § 11100 et seq.) 1 However, due to the pervasive unfavorable economic conditions during the Great Depression, the state turned to the federal government to finance and construct the massive project.

Construction of the CVP began in 1937. It is now one of the world's most extensive water transport systems. As noted, Shasta Dam on the upper Sacramento River is the focal point of the CVP. Shasta Dam was completed in 1945 but began storing water and generating electric power in 1944. The waters of the Sacramento River which flow past the Shasta Dam are augmented by additional water supplies brought through a tunnel from the Trinity River and from reservoirs formed by Folsom and Nimbus Dams on the American River. About 30 miles south of Sacramento, the Delta Cross

Page 167

Channel regulates the passage of Sacramento River water through the Delta to the Tracy Pumping Plant.

At Rock Slough, a portion of the water is pumped into the Contra Costa Canal for municipal uses in Contra Costa County. At the Tracy Pumping Plant, the water is lifted nearly 200 feet above sea level into the Delta Mendota Canal and flows 117 miles southward to the Mendota Pool. Here, the waters from the north replace the natural flow of the San Joaquin River. At Friant Dam, the flow of the San Joaquin River is impounded and diverted through the Friant-Kern Canal 152 miles south to the southern reaches of the San Joaquin Valley. (See generally Rogers & Nichols, op. cit., supra, pp. 42-62; Engle, Central Valley Project Documents (1956); see also Commentary, Craig, California Water Law in Perspective, 68 West's Ann.Water Code (1971 ed.) pp. LXXVII-LXXIX; U.S. v. Gerlach Live Stock Co. (1950) 339 U.S. 725, 728-730, 70 S.Ct. 955, 957-58, 94 L.Ed. 1231; Ivanhoe Irrig. Dist. v. McCracken (1958) 357 U.S. 275, 280-283, 78 S.Ct. 1174, 1178-79, 2 L.Ed.2d 1313.)

Following World War II, state authorities renewed their efforts to develop a comprehensive statewide water plan. In 1951 the Legislature authorized the...

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