CALIFORNIA WATER RESOURCES

ASSIGNMENT 9

The Doctrine of Waste and Unreasonable Use

I have spoken of the rich years when the rainfall was plentiful. But there were dry years too, and they put a terror in the valley. Then there would come six or seven pretty good years of twelve to sixteen inches of rain. And then the dry years would come.

John Steinbeck, East of Eden (1952)

Reading:

Erickson v. Queen Valley Ranch Co.

People ex rel. State Water Resources Control Board v. Forni

Environmental Defense Fund v. East Bay MUD

Marc Reisner, Coming Together on Rice

NRDC, Alfalfa Overview

Delta Watermaster, The Reasonable Use Doctrine and Agricultural Water Use Efficiency

Notes and Questions:

1.In his first water law casebook, Professor Sax observed:

Although there are a number of well-known cases in which extreme instances of waste were enjoined, the bulk of cases in which the courts have found profligate use and refused to issue injunctions are far more impressive. It is easy to be misled by the inconsistency between what the courts say, and what they do. For example, the Utah Supreme Court has a habit of writing extended essays on the need to avoid wasteful uses in areas of water shortage, and then concluding that under the particular facts of the case under consideration, the admittedly wasteful use ought not to be enjoined. E.g., Carbon Canal Co. v. Cottonwood-Gooseberry Irr. Co., 19 Utah 2d 131, 427 P.2d 396 (1967); Fairfield Irr. Co. v. White, 18 Utah 2d 93, 416 P.2d 641 (1966); In re Water Rights of Escalante Valley Drainage Area, 10 Utah 2d 77, 348 P.2d 679 (1960).

Joseph L. Sax, Water Law Planning and Policy 272-73 (Michie 1968).

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Thus, to some extent, the modern waste and unreasonable use cases that we have read to dateespecially Joslin, Erickson, and Fornialthough important and influential, are atypical. Far more common are decisions such as Carey v. Cochran, in which the Nebraska Supreme Court holds that "first in time" means "first in right," and cases such as Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, in which the California Supreme Court rails against waste, but allows the appropriators whose rights were challenged to defend on the ground that its waste is not significantly greater than that which is the "custom of the locality." Moreover, while these are older cases, it is disturbing to note that in a contemporary setting the United States Supreme Court has condoned a 75 percent loss of applied irrigation water, including a 68 percent loss of water from impoundment to individual farm headgates. Colorado v. New Mexico, 467 U.S. 310, 319 (1984).

Nevertheless, the California waste and unreasonable use cases are important because (1)they suggest the potential for using these doctrines to curb inefficient practices and to reallocate water, and (2) they help to define the nature and extent of the private property right in water.

2.As the opinion in Erickson indicates, the forfeiture of an appropriative right for nonuse, see Cal. Water Code 1241, is different from the limitation of the exercise of a water right for waste, unreasonable, or nonbeneficial use.

3.Was Erickson decided correctly? Should there be a legal distinction between carriage losses incurred during transportation in the river (as in Carey) and carriage losses that occur during transportation through a canal (as in Erickson)?

4.How is the Plaintiffs' water right measured?

5.Why did the Court of Appeal conclude that the Plaintiffs' use was unreasonable? Would the use have been unreasonable if there had not been a competing appropriation?

6.Read the final paragraph of the opinion carefully.

a.How should the trial court draft the decree on remand?

b.What action (if any) must the Plaintiffs take to eliminate the unreasonable use?

c.Which party must pay to correct the unreasonable use? The Court states that plaintiffs are under no legal compulsion to install a pipe. Defendants, on the other hand, are under some economic compulsion, for their ability to segregate a surplus flow available for appropriation may depend upon a physical means of preventing transmission loss. If Erickson assigns the cost of lining the canal or installing a pipeline to the defendants, is the decision consistent with Joslin?

d.What happens to the rights of the respective parties if the United States Forest Service continues to deny permission to replace the unlined ditch with a pipeline?

e.Would the Superior Court have jurisdiction to compel the Forest Service to issue such a permit?

f.In view of the benefits that the unlined canal provides to plant and animal life in the area, is the Plaintiffs' use unreasonable?

g.Can environmental benefits of an otherwise wasteful water usein this case the creation of wildlife and waterfowl habitatrender the "waste" reasonable and therefore lawful?

h.Would it be an unreasonable use for the Plaintiffs to replace the unlined canal with a pipeline?

Cf. Krieger v. Pacific Gas & Electric Co., 119 Cal. App. 3d 137 (3d Dist. 1981) (seepage from unlined canal that supported non-indigenous vegetation was beneficial under Article X, Section 2).

7.In 1980, the California Legislature codified one portion of the Erickson holding. Section 100.5 of the Water Code provides:

It is hereby declared to be the established policy of this state that conformity of a use, method of use, or method of diversion of water with local custom shall not be solely determinative of its reasonableness, but shall be considered as one factor to be weighed in the determination of the reasonableness of the use, method of use, or method of diversion of water within the meaning of Section 2, Article X of the California Constitution.

8.What was the allegedly unreasonable use in Forni?

9.In its opinion, the Court states: Whether the requirement of building water reservoirs in the case at bench is the only feasible method for achieving the constitutional mandate of reasonableness is manifestly a question of fact. Is the italicized phrase the appropriate remedial standard for reasonable use cases?

10.The principal beneficiaries of the Forni decision were non-riparian vineyards in the Napa Valley. Doesn't the Court of Appeal's opinion place the rights of these appropriators on a par with those of the Napa Valley riparians? Is this a proper reconciliation of the riparian and prior appropriation doctrines?

11.On remand, the Superior Court found that the riparians direct diversion during the frost season was an unreasonable use of water. This conclusion had the effect of compelling both the riparians and the non-riparians to construct reservoirs or storage tanks from which they could withdraw water during periods of high simultaneous demand. Is this consistent with the legal hierarchy of water rights that grants riparians as a class superior rights to appropriators?

The SWRCBs final regulation on water withdrawals and frost protection in the Napa River basin may be found at 23 California Code of Regulations 735.

12.The Forni decree is an example of a "physical solution" to a water rights controversy. The replacement of the unlined conveyance ditch in Erickson with a pipeline or lined canal would have been another example. The "physical solution" is a common feature of California water law, which we will encounter on many future occasions. Indeed, the California Supreme Court has held that, before a water right may be limited based on a finding of waste or unreasonable use, the court must "ascertain whether there exists a physical solution of the problem presented that will avoid the waste, and that will at the same time not unreasonably and adversely affect the prior appropriator's vested property right." City of Lodi v. East Bay Municipal Utility District, 7 Cal. 2d 316, 339-40 (1936). The Court emphasized, however, that the senior appropriator cannot be compelled to incur any material expense in order to accommodate the subsequent appropriator. Although the prior appropriator may be required to make minor changes in its method of appropriation in order to render available water for subsequent appropriators, it cannot be compelled to make major changes or to incur substantial expense.

In light of this directive, should the courts have required the junior appropriator in Erickson and the appropriators in Forni to have borne the costs of constructing and operating the facilities that comprised the "physical solutions" to those cases? Is the City of Lodi rule consistent with Joslin?

13.The plaintiffs sought a physical solution in Environmental Defense Fund v. East Bay MUD, arguing that the utilitys point of diversion at Folsom Dam was unreasonable in light of the potential adverse effects on fish and recreational uses of the lower American River. They asked the court to order East Bay MUD to move it point of diversion downriver below the confluence of the American and Sacramento riversa physical solution that would accommodate both East Bay MUDs water supply needs and the instream uses dependent on the quantity and flow of water in the lower American River.

The California Supreme Court held that the courts and the State Water Resources Control Board have concurrent authority under Article X, Section 2 to direct an appropriator to move its point of diversion downriver for the purpose of protecting instream uses of the river below the existing point of diversion. Please note the Courts reiteration and endorsement of the broad definition of reasonable use set forth in Joslin.

14.On remand and following trial, Judge Richard Hodge of the Alameda County Superior Court ruled that East Bay MUD could maintain its upstream point of diversion at Folsom Dam, but he required the district to maintain minimum instream flows in the American River below the dam to protect chinook salmon and recreational uses. Environmental Defense Fund v. East Bay Municipal Utility District, No. 425955 (filed Jan. 2, 1990).

Ten years later, EBMUD concluded that it could in fact divert safe potable water from the Sacramento River instead of from the American. The parties to the lawsuit subsequently came to an agreement on the minimum flow regime for the Lower American River:

Bernadette Tansey, Environmentalists Settle Fight Over American River

S.F. Chronicle, Jan. 16, 2001

A decades-long water rights battle is set to end this week with approval of a peace treaty of sorts between the East Bay Municipal Utility District and dogged opponents of its plan to draw supplies from the American River. After fighting for 30 years to exercise its federal contract to take upstream river water it considered cleaner, EBMUD has agreed instead to use Sacramento River water from a point south of Sacramento. The U.S. Bureau of Reclamation has sanctioned the plan, clearing the last potential hurdle to the deal, agency spokesman Jeff McCracken said. City and county officials in Sacramento, which had joined environmentalists in lawsuits against EBMUD, are expected to endorse the compromise today.

Ron Stork of Friends of the River said the agreement will protect salmon runs and wildlife habitat on the American River and preserve water flows for boating and fishing along American River Parkway, a popular recreation site in Sacramento. "It's the end of a 30-year water war," Stork said.

Although EBMUD has paid about $20 million to the federal government for the water contract it signed in 1970, the district has never drawn a drop of water from the American River due to the protracted legal challenges. An Alameda County judge tried to craft a solution with a 1990 ruling that would have allowed EBMUD to use American River water, but the district chafed at the ruling's restrictions on water withdrawals during dry years.

Movement toward a compromise came swiftly late last year after a study found that Sacramento River water could be treated to match the quality of American River water while costing less. Sen. Dianne Feinstein and Rep. Ellen Tauscher, D-Walnut Creek, prompted the Interior Department to work with EBMUD, Sacramento officials and environmentalists to devise a plan they could all accept.

The draft agreement allows EBMUD to draw as much as 133,000 acre-feet a year from the Sacramento River at an intake point at Freeport, even in drought years. Although EBMUD conservation efforts have reduced its water consumption from 222 million gallons a day in 1977 to 210 million gallons a day this year, it still faces a potential shortage during dry spells, said spokesman Gayle Montgomery. To access the water the district will build a system of conduits for about $360 million to funnel Sacramento River water east across Sacramento and then south to the Mokelumne Aqueduct.

The water district board will consider final approval of the plan later this month. No opponents to the new deal have come forward. But parties to the agreement said they would not be surprised if other users of federal water project supplies south of Sacramento, such as Central Valley farming interests, filed legal challenges to block the compromise. For that reason, Stork said, environmentalists are encouraging EBMUD to make sparing use of its water rights to the Sacramento River by expanding its conservation efforts. "It's important for East Bay MUD to recognize that their choice to divert (Sacramento River water) in years of shortage will mean there are other shortages imposed on other users," Stork said.

Matt Weiser, Deal Goes With the Flow to Boost American River

Sacramento Bee, Sept. 13, 2005

Stranded fish and stuck boats could become a summertime memory on the lower American River, thanks to a long-awaited agreement to boost water flows. The deal, endorsed by the U.S. Bureau of Reclamation, increases minimum flows in the American River below Folsom Dam year round. Proponents call it good for fish, anglers and others who enjoy the American River Parkway.

The agreement, especially important in late summer and fall when natural runoff declines and water demand soars, probably won't be implemented until 2007 at the earliest. Some operational details still need to be worked out, but agreement on the flow numbers is being hailed as a landmark in Sacramento water policy. "It is a major milestone, and it's a major part of protecting the American River that this community has spent so many years trying to get," said Ronald Stork, a senior policy advocate at Friends of the River. "It should sustain the fishery as well as recreational resources in the river for many years to come."

The bureau, which controls water releases from Folsom Dam, has been allowed to drop American River flows to as low as 250 cubic feet per second. Though rare, such extreme flows raise water temperatures and create stagnant pools that are deadly to protected salmon and steelhead. Flow reductions in winter 2003, for instance, left thousands of young salmon and eggs to die in shallow areas. And last fall, state Fish and Game biologist Rob Titus discovered steelhead in the river afflicted with rosy anus, an intestinal illness triggered by high water temperatures and crowding.

The new standard establishes a minimum flow between 800 cfs and 2,000 cfs. The actual flow will be adjusted seasonally, based on the needs of fish and the amount of water available. Even at the lowest point, however, minimum flows will still be more than three times greater than current rules allow. "The purpose of the ranges is to make for a flow standard that actually works," said Leo Winternitz, executive director of the Sacramento Water Forum, which negotiated the standard on behalf of numerous local water agencies.

Depending on conditions, the deal could require the bureau to release as much as 1,750 cfs in October, an important time for steelhead migration. That can also be a period of high urban water demand, so to make greater fish flows possible, Sacramento municipal water agencies agreed to give up their rights to American River water in dry years. "We agreed to get off surface water and use groundwater for environmental purposes," said Shauna Lorance, general manager of San Juan Water District, which will buy the groundwater from neighboring agencies. "This is an absolutely great example of the community coming together to do what's right for the region."

As a result, more water for fish will not reduce water to downstream farmers, but may change only the timing of deliveries. This was key to satisfying the bureau's needs and preventing opposition from farm groups. "If you're somebody who enjoys fishing, it keeps the flows in the river and it is protective and probably healthier for fish," said Mike Finnegan, area manager for the Bureau of Reclamation. "If you enjoy scenery, I think the flows will be at a good level year round."

The Water Forum still needs to negotiate who will manage the flow standard, and what kind of river monitoring will be required to ensure the new flows are working. Winternitz called these issues "minor" and hopes to bring the complete package to the state Water Resources Control Board in early 2006. The board probably will require an environmental impact report, which will push adoption of the standard into late 2006 or early 2007. The final result will give American River fish a legal water right under state law, which does not exist now. "Water rights are one of the more durable institutions that Western societies have devised, at least so far," said Stork.

The struggle to boost river flows dates to 1972, when the East Bay Municipal Utility District obtained rights to American River water. Fearing this would dry up the river, environmental groups filed a lawsuit that went all the way to the U.S. Supreme Court. They eventually won, which led the state Water Resources Control Board to declare in 1990 that flows were not adequate for American River fish, launching the negotiations that finally concluded last week.

Although many deadlines were missed, even leading skeptics are pleased to have agreement on improved flows. Felix Smith, a Carmichael resident and retired U.S. Fish and Wildlife Service biologist, has watched the negotiations for years as a member of Save the American River Association, a plaintiff in the original lawsuit. "It's a step in the right direction," Smith said. "The devil is in the details, of course. If the bureau still has total control as to what they want to do all the time, then we really won't have much of a plan."

15.Is it at all odd that in some cases downstream points of diversion are unreasonable (e.g., Antioch), while in others it is the upstream point of diversion that may be unreasonable?

16.For an exploration of other physical solutions, see Arthur L. Littleworth & Eric L. Garner, California Water II 171-85 (Solano Press 2007); and Harrison Dunning, The "Physical Solution" in Western Water Law, 57 U. Colo. L. Rev. 445 (1986). We will revisit the concept of the physical solution later in the semester during our analysis of City of Barstow v. Mojave Water Agency, 23 Cal. 4th 1224 (2000).

17.In what other contexts should the doctrines of waste and unreasonable reasonable use be applied to limit the exercise of water rights? For example, should the courts or the State Water Resources Control Board entertain claims that the irrigation of rice in the Sacramento Valley and alfalfa in the San Joaquin Valley are unreasonable uses of water because both crops demand an inordinate amount of water relative to available supplies and competing uses of the water?

Recall that, in Town of Antioch v. Williams, the city argued that the upstream appropriators were using water unreasonably use by planting rice, which requires large quantities of standing water to grow. The California Supreme Court responded that the determination whether rice cultivation in an arid region is contrary to the greater interests of the state "is a legislative question which the court cannot consider." Does Antioch preclude these types of unreasonable use claims, or has this dictum been overruled by the enactment of Article X, Section 2 and subsequent cases such as Joslin, Erickson, Forni, and EDF?

18.As he noted in his article, Marc Reisner was one of the most outspoken critics of flood irrigation of the rice fields until he learned of the benefits of these artificial wetlands for migratory birds and other wildlife. In light of Erickson, could the rice growers use these incidental environmental benefits of their arguably inefficient irrigation practices to defend against an unreasonable use challenge? Would such a defense be consistent with Joslin?

19.The Legislature created the position of Delta Watermaster as part of the Sacramento-San Joaquin Delta Reform Act of 2009. California Water Code 85230. The Watermaster is appointed by the State Water Resources Control Board for a term of three years and reports to the Board and to the Delta Stewardship Council, which is charged with creating and overseeing the implementation of the Delta Plan. (We will study the Delta Reform Act and the role of the Council later in the semester.) According to the legislation:

The Delta Watermaster shall exercise the board's authority to provide timely monitoring and enforcement of board orders and license and permit terms and conditions. The Delta Watermaster's delegated authority shall include authority to require monitoring and reporting, authority for approvals delegated to an officer or employee of the board by the terms of a water right permit or license, authority to approve temporary urgency changes pursuant to Chapter 6.6 (commencing with Section 1435) of Part 2 of Division 2, and authority to issue a notice of proposed cease and desist order or administrative civil liability complaint. The Delta Watermaster's authority shall be limited to diversions in the Delta, and for the monitoring and enforcement of the board's orders and license and permit terms and conditions that apply to conditions in the Delta.

Id. 85230(a). The legislation also states that the Watermaster shall submit regular reports to the board and the council including, but not limited to, reports on water rights administration, water quality issues, and conveyance operations. Id. 85230(d).

20.Do you agree with the Delta Watermasters analysis of agricultural water use efficiency and the reasonable use doctrine? By what standards should alleged agricultural unreasonable use be evaluated?

21.Who has the rights to the conserved water made available by increased efficiency of usethe individual farmer, the irrigation district or water agency that (in many cases) holds the water right or water service contract, or the state? Section 1011(a) of the Water Code provides:

When any person entitled to the use of water under an appropriative right fails to use all or any part of the water because of water conservation efforts, any cessation or reduction in the use of the appropriated water shall be deemed equivalent to a reasonable beneficial use of water to the extent of the cessation or reduction in use. No forfeiture of the appropriative right to the water conserved shall occur upon the lapse of the forfeiture period applicable to water appropriated pursuant to the Water Commission Act or this code or the forfeiture period applicable to water appropriated prior to December 19, 1914.

Is this appropriate public policy? Does section 1011(a) potentially reward waste and unreasonable use? Or is this type of protection of water rights necessary to encourage water conservation and efficient use?

22.Section 1011(b) of the Water Code provides:

Water, or the right to the use of water, the use of which has ceased or been reduced as the result of water conservation efforts as described in subdivision (a), may be sold, leased, exchanged, or otherwise transferred pursuant to any provision of law relating to the transfer of water or water rights, including, but not limited to, provisions of law governing any change in point of diversion, place of use, and purpose of use due to the transfer.

According to Watermaster Wilson, the opportunity to sell conserved water may provide a financial incentive for more efficient water use and should be encouraged. Yet, he also states that, [o]f course, transfers should not be considered where the water user is subject to a waste or unreasonable use proceeding. Otherwise, the user would be rewarded for wasting water. Do you agree?

We will revisit section 1011 later in the semester when we get to the topic of water transfers.

23.What other applications of the reasonable use doctrine would be appropriate? For example, is the use of potable water for irrigation of lawns, golf courses, and other landscaping unreasonable? Does it depend on the circumstances? If so, what circumstances would justify a finding of waste and unreasonable use?

Does the Legislature have the power to declare certain uses categorically unreasonable? If so, what would be examples?

Would the State Water Resources Control Board or the courts have the authority to hold that an existing use of water is unreasonable because there are more economically or socially valuable uses to which the water should be allocated? Could the Board or a court order the reallocation of water from existing, relatively inefficient consumptive uses to environmental purposes? If multiple consumptive users are subject to such a determination, what is the proper role of priority of right in the apportionment of responsibility for contributing water to the environmental uses?

We will consider these and related questions as we continue to work through the cases interpreting Article X, Section 2 and other relevant laws.

ERICKSON v. QUEEN VALLEY RANCH CO.

California Court of Appeal

22 Cal. App. 3d 578, 99 Cal. Rptr. 446 (1971)

FRIEDMAN, Acting Presiding Justice.

Plaintiffs own 240 acres of ranch lands in Mono County. They seek to quiet title to the water of Morris Creek. In the early part of the century, plaintiffs' properties were owned by John Pedro, who established an appropriative right to the entire flow of Morris Creek. The primary issue is whether, before plaintiffs acquired the property, nonuse of the water had caused a complete or partial forfeiture of the appropriative right.

The headwaters of the creek are located in Nevada. In a state of nature the creek flowed into California, although John Pedro's ranch was not riparian to it. Commencing in 1902, Pedro acquired appropriative rights and built a diversion dam, which is located about one-half mile east of the present California-Nevada state line. From the dam he built a stone-lined diversion ditch, which conducted the entire flow of the creek by gravity to his ranch, about two and one-half miles distant. The ditch was about two feet deep and two feet wide. John Pedro died in 1916. The ranch was held by his widow and three sons until 1966, when it was sold to plaintiffs.

Some years after John Pedro's death, and over the protests of the Pedro family, defendants were issued appropriative permits by the Nevada state authorities, allowing them to transport up to five second/feet of Morris Creek by pipeline to irrigate Nevada property. The permits were expressly subordinated to any preexisting rights found by a court. At one point a contractor employed by defendants stopped the flow of water into the diversion ditch. Plaintiffs' protests caused partial restoration of the flow. Plaintiffs then instituted this action.

After considering evidence, the trial court found that John Pedro and his successors had continually put to beneficial use for irrigation and domestic purposes all the water of Morris Creek diverted to the land; that the Pedro family never abandoned or forfeited any right to the water; that, except for occasional storm runoffs, there is no surplus or unappropriated water; that evapotranspiration losses occurred during the two and one-half miles of flow but these losses were not unreasonable and were similar to the custom or practice prevailing in the locality. The court entered a judgment quieting the title to plaintiffs as appropriative owners of all the water of Morris Creek diverted at the upper end of the ditch.

Generally, an appropriative water right is forfeited by force of statute and reverts to the public if the appropriator fails to put it to beneficial use during a three-year period. (Wat. Code, 1240-1241.)[footnoteRef:1] Since John Pedro's appropriative right had been established before 1914, forfeiture required nonuse for five rather than three years. (Wright v. Best, 19 Cal. 2d 368, 380, 121 P.2d 702; 1 Rogers & Nichols, Water for California, pp. 515-16; Hutchins, The California Law of Water Rights, pp. 293-96.) Statutory forfeiture may be entire or only partial. (Smith v. Hawkins, 120 Cal. 86, 88, 52 P. 139.) Defendants, who base their claim on the forfeiture of a preexisting right, had the burden of proving facts constituting a forfeiture. (Ward v. City of Monrovia, 16 Cal. 2d 815, 820, 108 P.2d 425; Lema v. Ferrari, 27 Cal. App. 2d 65, 73, 80 P.2d 157.) [1: [In 1980, the California Legislature amended the law to provide that appropriative rights based on permits and licenses are subject to forfeiture by action of the State Water Resources Control Board after five years of nonuse. Cal. Water Code 1241. As a consequence, forfeiture of permitted and licensed water rights is no longer automatic.--ed.]]

As defendants view the evidence, there was no beneficial use of the water reaching the Pedro ranch during the nine years from 1956 to 1965. Defendants charge the trial court with error in finding uninterrupted beneficial use. In determining whether the finding is supported by the evidence, the reviewing court adheres to the familiar substantial evidence rule. (Chowchilla Farms Inc. v. Martin, 219 Cal. 1, 910, 25 P.2d 435.) * * *

We summarize the evidence supporting the trial court's finding of continued beneficial use: Until his death in 1916 John Pedro lived on the ranch with his wife and children. He had established 15 acres of alfalfa, a family orchard and vegetable garden, all irrigated by the creek water. Additional water was used for the household and to support a few head of cattle. After 1924 the water reaching the Pedro ranch diminished to a point where it would irrigate only six acres of alfalfa. One factor in the diminution was the growth of vegetation in and around the two and one-half miles of ditch. The ditch nevertheless was regularly cleaned.

During the 1920s and 1930s John Pedro's widow and three sons lived on the ranch, continuing to use the water for domestic needs, for watering livestock and for irrigation. One son, Charles, entered the armed forces in 1942 but the other two brothers and their families continued to live on the ranch. Although the alfalfa died down, about six acres was replanted in 1945. The latter too died back, but the water was used to irrigate a meadow which supported a few milk cows and 20 head of sheep. Charles returned in 1945 and lived on the ranch until late 1947. Between 1947 and 1965 Charles came to the ranch on weekends. One brother moved off the ranch in 1955 but the other continued to live there with his family. The brothers planted a garden each year and kept some sheep, poultry and rabbits. During this period all the water of Morris Creek was diverted into the ditch. The Pedro brothers occasionally inspected and cleaned the ditch. Domestic use, watering of poultry and livestock occurred throughout the year; irrigation of the family orchard and several acres of pasture were additional uses during the dry season. In 1965 Charles Pedro moved back to the ranch, and replanted alfalfa in the pasture area. In 1966 plaintiffs bought the property.

Defendants point out that the agricultural activities on the property were essentially noncommercial and aimed only at family use. Agriculture is a beneficial use of water even if it does not result in profit. (Nelson v. Anderson-Cottonwood Irr. Dist., 51 Cal. App. 92, 96, 196 P. 292.) Domestic use, irrigation of pasture, irrigation of a garden and fruit trees and watering of livestock, are all beneficial uses of water. (See cases collected 1 Rogers & Nichols, op. cit., pp. 262-63.) Watering of barnyard animals not kept for profit is a beneficial domestic use. (Deetz v. Carter, 232 Cal. App. 2d 851, 856, 43 Cal. Rptr. 321.) The evidence fully supports the trial court finding of continual beneficial use of that portion of the water of Morris Creek reaching the Pedro ranch.

* * *

The evidence of continued beneficial use at the Pedro ranch does not, [however,] support a finding of continued beneficial use at the point of diversion. Here we find reversible error. Plaintiffs' existing appropriative right is measured not by the flow originally appropriated and not by the capacity of the diversion ditch, but by the amount of water put to beneficial use at the delivery point plus such additional flow as is reasonably necessary to deliver it. The principle is set out in Smith v. Hawkins, supra, 120 Cal. at page 88, 52 P. at page 140:

[N]o matter how great in extent the original quantity may have been, an appropriator can hold, as against one subsequent in right, only the maximum quantity of water which he shall have devoted to a beneficial use at some time within the period by which his right would otherwise be barred for nonuser. And this principle has been more explicitly declared in the recent case of Senior v. Anderson, 115 Cal. 496, 47 P. 454, where it is held that an appropriation of water by the owner of land by means of a ditch is not measured by the capacity of the ditch through which the appropriation is made, but is limited to such quantity, not exceeding the capacity of the ditch, as the appropriator may put to a useful purpose.

An appropriator cannot be compelled to divert according to the most scientific methods; he is entitled to make a reasonable use of the water according to the general custom of the locality, so long as the custom does not involve unnecessary waste. (Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal. 2d 489, 547, 45 P.2d 972.) The trial court's finding including a formulary statement designed to satisfy this rule, declaring that evapotranspiration losses in the course of the two and one-half miles of conveyance by ditch are not unreasonable and are similar to the custom or practice of this locality.

According to measurements taken in August 1963, the Pedro ditch contained a flow of 2.585 cubic feet per second at a point 100 yards below the diversion dam, while only 0.424 cubic feet per second was delivered at the Pedro ranch. The major part, that is, five-sixths of the flow, was lost en route to the point of use. Although the evidence includes no later flow data, it supplies no ground for believing that the transmission loss is any less now than it was in 1963. Inferably, absorption into the sandy desert soil is a major loss factor, evaporation a relatively minor factor.

Article XIV, section 3, of the California Constitution declares the state's policy to achieve maximum beneficial use of water and prevention of waste, unreasonable use and unreasonable method of use.[footnoteRef:2] The constitutional policy applies to every water right and every method of diversion. (Peabody v. City of Vallejo, 2 Cal. 2d 351, 367, 40 P.2d 486; 1 Rogers & Nichols, op. cit., p. 499.) It imposes upon trial courts an affirmative duty to fashion a decree which will simultaneously protect the paramount right of the established appropriator and prevent waste. (City of Lodi v. East Bay Mun. Utility Dist., 7 Cal. 2d 316, 339-40, 60 P.2d 439.) [2: Article IV, Section 3 is now codified as Article X, Section 2 of the California Constitution.Ed.]]

The findings and decree in this case fail to accomplish the second of these objectives. By holding that transmission losses amounting to five-sixths of the flow are reasonable and consistent with local custom, the court effectually placed the seal of judicial approval on what appears to be an inefficient and wasteful means of transmission. Such a holding is not in conformity with the demands of article XIV, section 3.

It is doubtless true that water in the arid desert areas of Mono County is frequently transported by open ditch; also, that much of the flow may be lost by absorption and evaporation. Moreover, an appropriator who has for many years conveyed water by earth ditches may not be compelled at his own expense to install impervious conduit. (Tulare Irr. Dist. v. Lindsay Strathmore Irr. Dist., supra, 3 Cal. 2d at pp. 57273, 45 P.2d 972.) Nevertheless, an excessive diversion of water for any purpose is not a diversion for beneficial use. (Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra, 3 Cal. 2d at p. 547, 45 P.2d 972.) Water of Morris Creek which is presently wasted becomes excess water available for appropriation. (See Wat. Code 1201, 1202, subd. (c), 1241; Stevinson Water Dist. v. Roduner, 36 Cal. 2d 264, 270, 223 P.2d 209; Meridian, Ltd. v. City & County of San Francisco, 13 Cal. 2d 424, 445-46, 90 P.2d 537.) Another would-be appropriator may be willing to invest in a more efficient conveyance system in order to capture and use the water now lost en route. * * *

When the issue involves a possible surplus available to a later appropriator over and above the needs of the prior appropriator, a generalized finding of reasonableness at the point of diversion is inadequate. (See Trussell v. City of San Diego, 172 Cal. App. 2d 593, 606-09, 343 P.2d 65.) A finding of reasonableness which cloaks a transmission loss amounting to five-sixths of the diverted flow fails to respond to the demands of constitutional policy. That policy required the trial court to inquire and make findings in terms of the flow taken at the point of diversion; the flow delivered at the point of use; the flow, if any, made available to the later appropriator by a physical solution permitting maintenance of the flow delivered to the prior appropriator; and finally, to consider the retention of jurisdiction in order to accomplish maximum utilization of the water. (See Allen v. California Water & Tel. Co., 29 Cal. 2d 466, 488, 176 P.2d 8.) In the light of constitutional policy, there were material issues on which the trial court did not find. The evidence discloses a possibility of partial forfeiture. Specific findings of this sort will confirm or negate that possibility. Defendants requested such specific findings. Rejection of the request was reversible error.

Some enlightenment dehors the record turned up at oral argument. The attorneys were in apparent general agreement on the unrecorded circumstances; these circumstances do not affect our decision to reverse; their consideration may assist the trial court and parties. It appears that the two and one-half miles of ditch traverses land under the jurisdiction of the United States Forest Service. Over the years leakage from the ditch has generated vegetation. The water and vegetation support a population of deer and quail. Plaintiffs sought permission to replace the ditch with a pipeline but the Forest Service declined for the sake of the animal and bird life. As we pointed out earlier, plaintiffs are under no legal compulsion to install a pipe. Defendants, on the other hand, are under some economic compulsion, for their ability to segregate a surplus flow available for appropriation may depend upon a physical means of preventing transmission loss. Defendants may be able and willing to work out a solution with the Forest Service. Whether the federal agency has any proprietary interest in the water leakage is outside the present scope of this lawsuit. If a three-way extra-judicial solution is impossible, a three-way lawsuit in an appropriate forum may be necessary to resolve the problem. As between the present parties, in any event, the trial court is obliged to fashion findings and a judgment consistent with the constitutional policy of water conservation.

Judgment reversed.

JANES, J., and PIERCE, J. Assigned, concur.

PEOPLE ex rel. STATE WATER RESOURCES CONTROL BOARD v. FORNI

54 Cal. App. 3d 743, 126 Cal. Rptr. 851 (1st Dist. 1976)

KANE, Associate Justice.

Plaintiff appeals from the trial court's judgment denying injunctive and/or declaratory relief.

On March 13, 1974, the State Water Resources Control Board ("Board") initiated this action to enjoin certain vineyardists in the Napa Valley from drawing water directly from the Napa River to their vineyards for frost protection. The complaint charges that the direct diversion of water during the frost period extending from March 15 through May 15 each year constitutes an unreasonable method of diversion within the meaning of article XIV, section 3, of the California Constitution[footnoteRef:3] and section 100 of the Water Code. This assertion is predicated upon allegations that the river flow during the frost season is insufficient to supply the instantaneous needs of all the vineyardists entitled to water. As a consequence, it is alleged, direct diversion during the frost season may at times dry up the river and deprive many of the vineyardists of water which they need to protect their vines from frost. Based upon similar allegations, the Board also sought redress by way of declaratory relief.[footnoteRef:4] [3: [The 1928 amendment originally was codified at Article IV, Section 3 of the California Constitution. Today, it appears at Article X, Section 2Ed.]] [4: The pertinent portions of the complaint read as follows: (1) Wine production and the growing of grapes in Napa County is an economically important agricultural industry to Napa County and to the State of California;

(2) A major problem in the production of wine grapes in the Napa River Valley is frost damage between the dates of March 15 and May 15 of each year;

(3) The most effective method of protection against such frost damage is application of a fine spray of water from a sprinkler system;

(4) Much of the existing sprinkler systems for such application use the Napa River as a direct source of water and the instantaneous demand for Napa River water for frost protection alone will in the near future far exceed the average flow of the Napa River for the months of March, April and May;

(5) The only feasible solution to this threatened shortage of Napa River water, which shortage will, unless averted, affect and jeopardize a grape crop important not only to the public health, welfare and economic well being of Napa County but of the entire State of California, is (a) to require forthwith the winter storage of water for use for frost protection so that no direct pumping of Napa River water for such purpose would be necessary during an actual frost, and (b) to develop, for future long-range use, other sources of water to supplement the Napa River.]

On September 24, 1974, respondents filed a motion for summary judgment, claiming inter alia that they were riparian owners and that the Board had no authority to prohibit or limit their use of water. Treating the motion as one for judgment on the pleadings, the trial court granted the motion, holding in essence that the direct diversion of water from the Napa River for frost protection during the frost season was not unreasonable within the meaning of article XIV, section 3, of the Constitution and section 100. At the same time the trial court struck down section 659 of title 23 of the California Administrative Code (hereinafter "Regulation"), which declared that the direct diversion of water from the Napa River during the frost period was unreasonable. Judgment on the pleadings was entered on January 10, 1975, and the present appeal followed.

* * *

It is readily apparent that the claim that respondent's direct diversion of water constitutes an unreasonable use and an unreasonable method of use of water is predicated on the very premise that the direct pumping results in great temporary scarcity of water during the crucial frost period. Thus, as spelled out before, the complaint sets forth that the most effective way of protecting the young vine shoots against frost damage is the application of a fine spray of water from water sprinklers; that the diversion of water by direct pumping creates a high instantaneous demand for water which, in turn, depletes the river and makes the water supply inadequate during the frost period; that the threatened shortage which poses great hazard to the grape vineyards in Napa Valley can be prevented by building and utilizing winter storage or reservoirs which render the direct pumping of water unnecessary during the short duration of the actual frost. Based upon these factual allegations, appellant properly concludes that the direct diversion of water for frost protection in the crucial period constitutes an unreasonable use and an unreasonable method of use of water within the purview of the Constitution and the statutory provisions. Consequently, appellant's complaint does state sufficient facts to constitute a cause of action for injunctive and/or declaratory relief and renders the judgment on the pleadings erroneous as a matter of law.

The aforestated salient reasons notwithstanding, respondents insist that appellant's complaint failed to state a cause of action and that the judgment on the pleading was properly granted by the trial court. In essence, it is contended that (1) respondents as riparian owners possess a primary right to use the river flow by direct diversion to beneficial use even if as a result no water is left for appropriation; (2) the Board has no authority to regulate or prohibit the exercise of riparian rights or to prescribe construction of storage facilities as a prerequisite to the exercise of such rights; and (3) the riparian right is a part of the land, a vested right of which the riparian owner cannot be deprived without just compensation. As shall appear below, respondents' arguments are lacking in merit and must therefore be rejected.

Addressing respondents' first contention, we concede that under the law prior to the 1928 constitutional amendment the riparian owner had a right to all the ordinary and natural river flow undiminished except by reasonable use of upper riparian owners (Herminghaus v. South. California Edison Co. (1926) 200 Cal. 81, 95; 3 Witkin, Summary of Cal. Law (1973 ed.), 581, p. 2247). However, as pointed out before, the effect of the passage of article XIV, section 3, of the Constitution was to modify the longstanding riparian doctrine and to apply by constitutional mandate the doctrine of reasonable use between the riparian owners and others, including appropriators (Tulare Dist. v. Lindsay-Strathmore Dist., supra, 3 Cal.2d at p. 524). Likewise, the claim that respondents' use of water is beneficial does not bring it within the constitutional postulate of reasonableness. As emphasized in Joslin, "beneficial use" cannot be equated with "reasonable use," and "the mere fact that a use may be beneficial to a riparian's lands is not sufficient if the use is not also reasonable within the meaning of section 3 of article XIV . . ." (Joslin v. Marin Mun. Water Dist., supra, 67 Cal. 2d at p. 143).

Respondents' next contention that the Board infringed upon existing riparian rights by requiring construction of storage facilities also misses the point. As we have repeatedly underscored, the overriding constitutional consideration is to put the water resources of the state to a reasonable use and make them available for the constantly increasing needs of all the people. In order to attain this objective, the riparian owners may properly be required to endure some inconvenience or to incur reasonable expenses. * * * Whether the requirement of building water reservoirs in the case at bench is the only feasible method for achieving the constitutional mandate of reasonableness is manifestly a question of fact.

* * *

Respondents' third contention as to the vested right theory deserves but short consideration. While correctly arguing that a vested property right cannot be taken without just compensation, respondents ignore the necessity of first establishing the legal existence of a compensable property interest. Such an interest consists in their right to the reasonable use of the flow of water. However, for the purposes of judgment on the pleadings, appellant adequately alleged that respondents' use of water was unreasonable. Moreover, there is a well recognized distinction between a "taking" or "damaging" for public use and the regulation of the use and enjoyment of a property right for the public benefit. The former falls within the realm of eminent domain, the latter within the sphere of the police power. It is established beyond dispute that the constitutional amendment in question is a legitimate exercise of the police power of the state, and that it purports only to regulate the use and enjoyment of a property right for the public benefit (Gin S. Chow v. City of Santa Barbara, supra; Joslin v. Marin Mun. Water Dist., supra, 67 Cal. 2d at p. 144). As a consequence, the vested right theory advanced by respondents has no applicability to the present case at all.

Finally, we summarily reject the argument that the Board had no statutory authority to bring an action in which the reasonableness of respondents' water use could be adjudicated. Section 275 does confer such authority upon appellant Board by providing that "The department and board shall take all appropriate proceedings or actions before, executive, legislative, or judicial agencies to prevent waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water in this state." (Italics added.)

In conclusion, we wish to make it unmistakably clear that all we hold today is that appellant's complaint states valid causes of action for either injunctive or declaratory relief or both, and that the question of reasonable use or reasonable method of use of water constitutes a factual issue which cannot be properly resolved by a motion for judgment on the pleadings.

The judgment is reversed.

Taylor, P.J., and Rouse, J., concurred.

ENVIRONMENTAL DEFENSE FUND v. EAST BAY MUNICIPAL UTILITY DISTRICT

Supreme Court of California

26 Cal. 3d 183; 605 P.2d 1; 161 Cal. Rptr. 466 (1980)

CLARK, J.:

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 [57 L. Ed. 2d 1018, 98 S. Ct. 2985], involving the doctrine of federal preemption.[footnoteRef:5] [5: Our earlier opinion, in addition to discussing federal preemption, also held causes of action seeking to compel defendant to reclaim waste waters must in the first instance be addressed to the State Water Resources Control Board. There is no reason to reconsider our opinion as to those causes of action because they do not involve federal preemption. [In California v. United States, the United States Supreme Court ruled that, in its administration of the federal reclamation program, the U.S. Bureau of Reclamation must comply with state water law unless the application of state law to a specific project would be inconsistent with express congressional directives regarding project operations.Ed.]]

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

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.

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 greater than those under natural conditions because hydroelectric developments of Sacramento Municipal Utility District and Placer County Water Agency serve to increase the natural flows in the restricted period.[footnoteRef:6] [6: Although not entirely clear the two requirements apparently mean that the flow in the lower American River during the critical restricted period will always be at least equal to the natural flow and will ordinarily be substantially above the natural flow.]

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.

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.

EBMUD's decision to obtain water from the American River violates article X, section 2, of the California Constitution and Water Code section 100.

The complaints seek orders, declaring EBMUD lacked legal capacity to enter the 1970 contract, requiring EBMUD to use its best efforts to rescind the 1970 contract with the bureau, and prohibiting EBMUD from implementing the contract and from issuing bonds to finance the construction of facilities for transmitting and distributing American River water.

* * *

Primary Jurisdiction Exhaustion of Remedies and Res Judicata

As pointed out above, the board has granted appropriation permits for the Auburn Dam in contemplation of the EBMUD contracts, made provision for recreational uses of the American River, and retained jurisdiction to consider diversion points. Claiming that the courts have concurrent jurisdiction to determine whether the construction of the Auburn Dam and the choice of the diversion point constitute unreasonable use of water, plaintiffs, original and in intervention, rely upon California Constitution, article X, section 2, and Water Code, section 100.[footnoteRef:7] Those provisions declare that the general welfare requires water resources be put to beneficial use to the fullest extent of which they are capable and that the waste or unreasonable use of water be prevented. In addition the constitutional provision declares: "This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained." [7: [Section 100 of the Water Code is simply a statutory reiteration of the constitutional requirement that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such water is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. Section 100 also repeats the declaration in Article X, Section 2 that the right to water or to the use or flow of water in or from any natural stream or watercourse in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water.ed.]]

A. Administrative Procedure

We pointed out in our prior decision in this case: "The scope and technical complexity of issues concerning water resource management are unequalled by virtually any other type of activity presented to the courts. What constitutes reasonable water use is dependent upon not only the entire circumstances presented but varies as the current situation changes. As this court noted in Joslin v. Marin Mun. Water Dist. (1967) 67 Cal. 2d 132, 140 [60 Cal. Rptr. 377, 429 P.2d 889], 'what is a reasonable use of water depends on the circumstances of each case, such an inquiry cannot be resolved in vacuo from statewide considerations of transcendent importance.'" (20 Cal. 3d at p. 344.)

Complex water development projects like the instant one involve three complex matters the development of additional water resources, the use of the waters developed, and the potential harm which may occur to existing resources due to the new development and uses.

In obvious recognition of our public policy to require water resources be put to beneficial uses and not wasted, the complexity of the problems presented, the numerous persons affected by water development projects and the necessity of continued regulation to meet changing circumstances, the Legislature has provided a comprehensive system for development, issuance, and administrative regulation of appropriative water rights.

Since 1914, the effective date of the Water Commission Act, exclusive jurisdiction over the granting and administration of appropriative rights has been delegated to the board and its statutory predecessors. The board's duties and responsibilities over appropriative rights include insuring that they meet the mandate of article X, section 2. (Wat. Code, 1050.)[footnoteRef:8] [8: Water Code section 1050 provides: "This division is hereby declared to be in furtherance of the policy contained in [Section 2 of Article X] of the Constitution of the State and in all respects for the welfare and benefit of the people of the State, for the improvement of their prosperity and their living conditions, and the board and the department shall be regarded as performing a governmental function in carrying out the provisions of this division."]

* * *

B. Administrative Procedure and the Courts

The provisions of article X, section 2 of the California Constitution being self-executing, the courts have traditionally enforced the proscriptions against unreasonable uses and unreasonable methods of diverting water. (E.g., Joslin v. Marin Mun. Water Dist. (1967) 67 Cal. 2d 132 [60 Cal. Rptr. 377, 429 P.2d 889]; Peabody v. City of Vallejo (1935) 2 Cal. 2d 351 [40 P.2d 486].)

In our prior opinion in the instant case, we considered the relationship between legislative provisions governing administrative regulation of reclamation of waste water and judicial enforcement of the self-executing provisions of article X, section 2. Based on statutory regulation of such reclamation, the potential dangers to public health, the problems of feasibility of reclamation, and the complexity of the issues, we concluded that courts should not exercise concurrent jurisdiction of proceedings to compel water agencies to reclaim waste water, but should defer in the first instance to the expertise of the appropriate administrative agencies. (20 Cal. 3d 327, 341 et seq.)

We recognized that courts had traditionally exercised jurisdiction of claims of unreasonable water use and we distinguished cases involving competing claims as to the reasonableness of normal water use, pointing out that they did not involve the complexity of the waste water reclamation issue or the "transcendent interests of public health and safety." (20 Cal. 3d 327, 344.)

* * *

Apart from overriding considerations such as are presented by health and safety dangers involved in the reclamation of waste water, we are satisfied that the courts have concurrent jurisdiction with the legislatively established administrative agencies to enforce the self-executing provisions of article X, section 2. Private parties thus may seek court aid in the first instance to prevent unreasonable water use or unreasonable method of diversion.

The fact that the board has retained jurisdiction to consider the diversion point of appropriated water does not deprive the superior court of jurisdiction. Express retention of jurisdiction of a matter not previously determined is merely express recognition of its statutorily granted concurrent jurisdiction. The board has not determined whether diversion of the EBMUD water through the Folsom-South Canal rather than diversion at Hood constitutes an unreasonable method of diversion.

The judgment is reversed with directions to grant appellants leave to amend their complaints to allege that diversion of EBMUD's water through the Folsom-South Canal constitutes an unreasonable method of diversion.

MARC REISNER, COMING TOGETHER ON RICELANDS, WETLANDS

AND FISHERIES, BAY ON TRIAL, SUMMER/FALL 1992, at 6-7

It took me about twelve years to like rice. My conversion began one morning in the fall of 1990, as I was driving north through the SacramentoValley en route to Richvale, where I was supposed to eat lunch with a bunch of rice farmers. The meeting had been arranged by a young man named Bob Herkert, who called me up a few days earlier to invite me on what he called, with no trace of irony, a goodwill tour.

I accepted the invitation because I have always believed that one should get to know ones enemies in order to hate them more. In Op/Ed pieces and articles and on the lecture circuit, I had built a kind of cottage industry around attacking rice in California, and I was flattered that the growers seemed to regard me as a serious adversary. Rice is a monsoon crop in an arid state, I wrote, that uses more water than everyone living around SanFrancisco Bay and is raised on subsidies, and kills millions of salmon each year in its diversion intakes.

On my way through the valley, however, I noticed that this monsoon crop supports lots of wildlife. On some fields that had been flooded to decompose rice straw after harvest, I saw masses of ducks and geese, a great gabbling and honking cacophony such as one expects to see on a wildlife refuge. Hawks were circling everywhere, seeking out rodents that seemed to thrive in the dense mats of straw. I saw stilts, avocets, herons, egrets, and, perched in a tree alongside an un-flooded field near the SutterButtes, a golden eaglethe third I had seen in all my years in the West. It was the size of a crop duster.

The meeting began as a kind of Papal Inquisitiontwenty obviously irked growers formed in a glowering half-circle around me in the conference room of the Western Canal Company. They tried to convince me that rice is good; I tried to convince them that they ought to be raising some other crop. By the time we settled down to lunch, however, the conversation had turned almost amiable; compared to most SanJoaquin growers I have debated (one of whom once threatened to punch me out), they seemed a friendly, almost reasonable bunch. The most memorable thing one of them said to me was that we didnt need to build Auburn Damif we used idle rice acreage for off-stream storage during the winter, we would have a new water supply, a new flood catchment basis, and, incidentally, a lot of great new habitat for waterfowl. (I cant remember if he was the same grower who had a bumper sticker on his truck that read, HELP YOUR GOVERNMENT DESTROY AMERICA, JOIN AN ENVIRONMENTAL GROUP.)

Rice, Weeds or Sprawl

Together with the Nature Conservancy, Ducks Unlimited, the California Waterfowl Association, and the rice industry itself, I have been working for a year now to make something big of that idea. Bringing it off may be difficultthe economics and hydrology are daunting, and the politics are Byzantinebut the idea is straightforward, and nothing new. It reaches back to a mythical Chinese poet and engineera consultant, no doubtnamed Kun, who may or may not have lived three thousand years ago.

California has 600,000 acres of cropland, mainly in the Sacramento Valley, that is suitable for growing rice. In fact, its suitable for growing almost nothing else. Rice is the one crop that likes to stand in water (especially the Japonica varieties that California grows best). Even if water is cheaper than dirtas much irrigation water is at least by weightno farmer can afford to raise rice on well-drained soils; it would use too much. Rice is grown on hard, adobe soils, dense as clay, that are found throughout the Sacramento Valleythe same soils that supported huge seasonal wetlands before the rivers were dammed and diked off. Unless we breach the levees and dynamite Shasta and Oroville dams, or spend hundreds of millions of dollars on water rights and land for new refuges, well never see those wetlands again. Nor are we likely to see other crops; farmers have tried to grow them on the almost impermeable adobe soils and failed. In a world tyrannized by humans, the rice-growing region will grow one of three things: rice, weeds, or sprawl.

I much prefer rice. In typical, pre-drought years, the Sacramento Valley raised about 1,800,000 tons of rice on 450,000 acres; as much as 70,000 tons is left behind in the fields. A hundred and forty million pounds of leftover rice, plus another hundred million pounds of tubers and similar food, amounts to a vast smorgasbord for over-wintering and residential waterfowl. Most biologists agree that, without at least 300,000 acres of producing rice fields, the Pacific Flyway would be devastated; the famished birds clean out the refuges in two to four weeks, then flock into the rice fields seeking more food and less crowded habitat.

Rice Fields as Habitat

When you flood a field after harvest, a whole new food chain materializes alongside the six hundred pounds of plant food thats left on each acre after harvest. It consists mainly of high-protein invertebratessnails, annelid worms, midges, seed shrimp, copepodsthat waterfowl love to eat. These are the same kinds of invertebrates that thrive in wetlands, and ducks and geese show much better breeding and laying success if they are around in abundancetheyre like the beef in a hamburger bun. Waterfowl love flooded fields, anyway, because they are the closest thing to a managed or natural wetlands. In terms of food production and habitat, on a scale of one to ten, a refuge probably rates a nine, says GaryKramer, the manager of the Sacramento National Wildlife Refuge. A flooded rice field rates a seven. Its the next best thing.

Today, most harvested fields are burned in order to get rid of the stubble, which has to be cleared before you can plant in the spring. Last year, the rice industry, which had been under great pressure to end that practice, agreed to phase out straw burning on 90 percent of its acreage by the end of the decade. The simplest and most beneficial alternative is winter-flooding; biodegradation and the birds themselves, pecking and trampling the fields for months, do most of the work.

In addition to decomposing rice stubble and creating excellent food and habitat for waterfowl, winter-flooding is also a means of storingfor days, weeks, or monthsthe occasional hue floods that threaten the valley and Delta levees, and always result in proposals for more dams. The great floods in February of 1986, for example, sent ten million acre-feet under the Golden Gate Bridge in two weeks; that was more than all of last years runoff. While that flood produced a bonanza salmon harvest in 1988, because juvenile fish escapement was extraordinarily high, you probably could have stored a few hundred thousand acre-feet with no appreciable effect on fisheries. After being captured, water can be released later in the year for urban users or Delta water quality, or both.

Using Rice Fields for Water Storage

Adobe hardpan soils are ideal for water storage because they dont percolate much water; if you flood a saturated field to a depth of one foot in November, most of it remains on the field for months. (Actually, the water depth increases through the winter, because the valley usually gets about twenty inches of rain.) If you were to flood, say, two hundred thousand acres a foot deep, you could offset a couple of hundred thousand acre-feet of capacity in ShastaLakewater that could, in theory, be conserved for release later in the year, when fish flows and cold water temperatures are more critical. (A deeper ShastaLake means a colder river.)

Offset storage is one idea thats being studied by PhilipWilliams, the well-known SanFrancisco hydrologist and environmentalist who is performing hydrologic studies for the Ricelands Wetlands Project. Conjunctive use is a variation on the same theme. In drought periods, you would pay rice farmers to meet some of their irrigation needs with pumped groundwater, foregoing surface water entitlements that could remain in the river for fish flows and downstream urban demand. During wet years, you would skim off some flood flows and spread the water across lots of acreage for waterfowl, then move it to recharge basins to replenish the aquifers.

Another idea is to flood fallowed rice fields (there is always some idle acreage) to depths of several feet and use the designated land exclusively for habitat and storage. Its easy to doyou simply raise and strengthen small levees that already existand its cheap: rebuilt levee storage costs two to four hundred dollars an acre-foot, compared to ten thousand dollars projected at Auburn Dam. Ideally, you would flood fields to shallow depths in early winter, when waterfowl need such habitat, then begin raising the water level in February, when the birds have begun to migrate back north and, coincidentally, reservoirs are spilling water during normal and wet winters.

Still another idea is to retain water from winter-flooding for irrigation in the spring. Irrigation districts could dedicate fallow acreage to water storage, pool water there, and release it into their canals and laterals when the irrigation season begins. Theres a beautiful symmetry to this idea, because rice likes its water warm, and salmon like their water cold. Water stored over the winter on rice fields would offset surface entitlements from reservoirs, which would remain fuller and colder for fish.

For each of these ideas, at least a dozen obstacles exist. Winter diversions have to be carefully timed, planned, and executed so as not to entrain young salmon and steelhead. (Because the rivers usually run high at that time of year, the impact of diversions may be very minimal, but its one of the potential problems being investigated by PhilipWilliams and his associates.) Some rice growers like the idea of conjunctive use and water exports because they want to earn some extra money; others dont cotton to it because theyre afraid of being OwensValleyed. Stem rot may be a problem for rice growers if fields are flooded most of the year, and yields may decline. Although pesticide releases have declined dramaticallyfrom thousands of pounds to under twenty pounds gross valuewater quality is a potential concern, if only because millions of waterfowl (perhaps millions more than now) will be going about their business in the flooded fields. Management and pumping costs could run into the millions of dollars, although water sales and habitat improvementwhich means more hunters and birderscould help offset such expenses.

Rice Growers Forming New Alliances

Whats most encouraging, for now, is that rice growers and conservationists (including some commercial fishermen) are finally sitting down to try to figure out how wildlife, agriculture, and tens of millions of people can all co-exist in this beleaguered state. For my part, I am now convinced that preserving much of Californias rice acreage is essential to the survival of the Pacific Flyway. Ive also been disabused of some other notions I once held about rice. Most of the crop is consumed in this country (a lot of it in California), less than 20 percent is raised on subsidized water, it hasnt been in surplus for years, and irrigated rice uses a lot less water than pasture or alfalfa.

The rice growers know that plenty of people would like to take their water away, and they are realistic enough to see that forming alliances with conservationists is their best chance of holding onto it. The Sacramento Valley and the SanJoaquin Valley are utterly different worlds, as GlenMartin, the outdoor writer for the SanFrancisco Chronicle, noted in his recent series on the river, and the rice industry is more than aware of that facttheyre proud of it. You should hear what some rice farmers have to say about cotton, alfalfa, and the J.G.Boswell Company.

NATURAL RESOURCES DEFENSE COUNCIL, ALFALFA OVERVIEW (1998)

Agriculture, Water Pricing, and Environmental Degradation

As in many other Western states, the environment in California has suffered tremendously from excessive water diversions. A maze of dams, aqueducts, and irrigation canals diverts an immense amount of water from the states rivers and estuaries to support booming agricultural industries. These diversions have devastated many of Californias freshwater ecosystems, and destroyed habitats for numerous fish and wildlife species.

Agriculture is a main driver behind Californias excessive water consumption, soaking up approximately 80 percent of the states developed water supply. Much of this water goes to growing low-value, high water-use crops, frequently as a result of below-cost water pricing by the federal government. Below-cost water pricing allows farmers to obtain water relatively cheaply, so they have less incentive to select low water-use crops or replace traditional, inefficient irrigation methods with more streamlined techniques. Taxpayers foot the bill for this excessive water use.

Alfalfa: The Thirstiest of the Thirsty

Alfalfa is the biggest water user of any California crop. Harvested mostly for hay, alfalfa soaks up nearly 25 percent of the states irrigation water, yet accounts for just four percent of the states agricultural revenue.[footnoteRef:9] Growing alfalfa requires more water per acre than any other state crop. [9: [Twenty-five percent of applied irrigation water represents about twenty percent of all water consumptively used in California. Four percent of the states agricultural revenues equals approximately four-tenths of one percent of Californias gross domestic product.Ed.]]

Given these high water requirements, alfalfa generates relatively low economic value. A 60-acre alfalfa farm using 240 acre-feet of water would generate approximately $60,000 in sales. A semiconductor plant using the same 240 acre-feet of water would generate 5,000 times that amount, or $300 million.

Alfalfas low economic value and high water requirements call into question its widespread production in California. The crop covers more acres in California than any other crop, and is produced in nearly every growing regionfrom the mountainous Modoc and Siskiyou counties in the north to the hot, arid Imperial Valley in the south. About 26 percent of California alfalfa is grown in the states southern deserts.

Inefficient Irrigation Practices

Alfalfa growers in California most commonly water their crop using flood irrigation. Depending on soil type and water management practices, these irrigation methods may direct as little as half of the irrigation water to the crop; the remainder is lost through evaporation, runoff, and percolation into the ground. This is unfortunate, given that agricultural experts and growers have demonstrated many effective water conservation approaches.

Proven-Effective Water Conservation Alternatives

Studies show that growers can achieve good alfalfa yields with less water. Alternative technologies such as drip irrigation, which applies water directly to plant roots, can reduce water losses by evaporation and actually increase yields. Another technique, known as bedded alfalfa, has the potential to save 15-20 percent of irrigation water by planting on raised rows and sending water down the furrows on the sides. Growers can also conserve water by improving irrigation scheduling, reducing the amount of irrigated acreage, and using other water management techniques.

Some farmers have capitalized on alfalfas drought resistance by stopping irrigation in dry years and resuming irrigation and harvest in average or wet years. This method allows growers to make the most out of water when it is scarce by transferring it to less water-intensive, higher-value crops.

Replacing alfalfa with other hay crops has potential as well. Preliminary studies at University of California at Davis reveal that a plant called berseem clover produces forage hay of nearly the same quality as alfalfa, and requires less water.

Feeding the Dairy Industrys Pollution Problems

Alfalfa production in California is closely linked to one of the states worst agricultural polluters: the dairy industry. More than 70 percent of Californias alfalfa is harvested as hay feed for dairy livestock. Dairies, in turn, rely heavily on alfalfa because it is the primary source of protein for cows.

Dairy is Californias largest agricultural industry. As in many other states, a growing number of industrial-scale dairy factories in California have generated enormous quantities of manure wastes containing toxic nitrates and disease-causing bacteria. Central Valley dairies alone produce as much waste as a city of 21 million. Many dairies illegally dispose of this waste into rivers, streams, and groundwater, threatening drinking water sources for millions of people.

Reaping the Benefits of Alfalfa Without Destroying Our Rivers

Alfalfa offers several environmental benefits. It plays an important role in building soil health by capturing atmospheric nitrogen, improving soil organic content, and preventing erosion with its extensive root systems. As a result, farmers can grow alfalfa to boost the yields of subsequent crops and maintain sustainable cropping systems. Alfalfa fields can also provide better habitat than many other crops for insects, birds, rodents, and other wildlife.

With current production levels in California, however, alfalfas massive water consumption is contributing to the destruction of rivers and other critical habitats. A modest reduction in alfalfa production can maintain the crops benefits and still save a tremendous amount of water.

Recommendations

The current level and method of alfalfa production in California is not an efficient use of the states water resources. This inefficient pattern of water use has had negative impacts on the environment and on water supply reliability for other water users. There are a variety of approaches that could mitigate these impacts.

Technical and financial assistance should be directed at encouraging farmers to utilize more efficient irrigation methods, including drip irrigation and growing bedded alfalfa.

The state and federal governments should actively foster a water market and should pursue options that would, particularly in dry years, transfer to other uses a portion of the water that is currently used to grow alfalfa.

Additional research should be done on berseem clover and other alternative forages that require less water.

Federal water subsidies and other below-cost pricing mechanisms should be phased out, so that the cost of irrigation water used by the alfalfa industry better reflects the modern value of water throughout California.

THE REASONABLE USE DOCTRINE & AGRICULTURAL WATER USE EFFICIENCY

A Report to the State Water Resources Control Board and the Delta Stewardship Council

(2010)

Craig M. Wilson, Delta Watermaster

Introduction

The Reasonable and Beneficial Use Doctrine (Reasonable Use Doctrine) is the cornerstone of Californias complex water rights laws. All water use must be reasonable and beneficial regardless of the type of underlying water right. No one has an enforceable property interest in the unreasonable use of water.

Water use has been found to be unreasonable in a variety of circumstances. However, the application of the Reasonable Use Doctrine tends to be a cumbersome, multistep process and has largely been reactive, where someone claims another persons use of water is unreasonable and uses a judicial or administrative forum to resolve the complaint.

The purpose of the report is to review the breadth of the Reasonable Use Doctrine, which can affect all water uses, including urban, hydropower, recreation, environment, and agriculture, and then to focus on how the Reasonable Use Doctrine can be used promote efficient use of water in the agricultural sector.

The underlying premise of this report is that the inefficient use of water is an unreasonable use of water. Accordingly, the Reasonable Use Doctrine is available prospectively to prevent general practices of inefficient water use. Indeed, the Reasonable Use Doctrine, as set forth in the State Constitution and California Statutes is broad and inviolate in scope. As interpreted by case law and administrative decisions and used to its full potential, it can comprehensively address the inefficient use of water in California.

The focus on agriculture in this paper is grounded in two principles: small changes in agricultural water use efficiency can produce significant amounts of wet water and Californias agricultural sector, which has tested and proven many conservation practices, is in a position to identify economically justified and locally cost effective water management techniques that retain the value of retur