The opinion
SIMS, J.,
Concurring. — I concur in Justice Robie’s opinion.
When I first reviewed this case, I thought that the equities were clearly with the board: After all, why couldn’t the board assign the state’s water rights subject to a condition that would preserve water quality of the Delta? What public purpose is served by upholding El Dorado’s technical claim based on priority?
But, upon reflection, I do not think the equities are with the board.
The board has never denied that application No. 5645 would give El Dorado a 1927 priority date. Rather, the board found, “the seniority of El Dorado’s right ... is irrelevant . . . .” As Justice Robie’s opinion makes clear, this conclusion was wrong.
There was a way for the board to deal in a straightforward way with El Dorado’s 1927 priority. Water Code section 10504 provides in pertinent part, “The board may release from priority . . . any application filed under this part *979 when the release ... is for the purpose of development not in conflict with such general or coordinated plan or with water quality objectives established pursuant to law.” 1
The board has not released El Dorado’s 1927 priority. In my view, this statute would allow the board to release El Dorado’s 1927 priority to ensure that El Dorado would contribute to water quality in the Delta. Except for one thing — section 10505, which provides: “No priority under this part shall be released nor assignment made of any application that will, in the judgment of the board, deprive the county in which the water covered by the application originates of any such water necessary for the development of the county.”
By refusing to release El Dorado’s priority, pursuant to section 10504, the board avoided the possible application of section 10505. But, in my view, this is how the board should have proceeded. Sections 10504 and 10505 set out the public policy of the state with respect to when priority of water rights may be avoided by the board. El Dorado was entitled to a determination whether the release of its priority would offend the county-of-origin rights conferred by section 10505.
I think the board went about this in the wrong way.
Undesignated statutory references are to the Water Code.