Appendix — Imperial Irrigation District v. State Water Resources Control Board

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Supreme Court, U.S

FILED

91-30 JUL 11 199%

OFFICE OF THE CLERK

No. 91- a

In the Supreme Court

OF THE

United States

OCTOBER TERM 1990

IMPERIAL IRRIGATION DISTRICT,

Petitioner,

STATE WATER RESOURCES CONTROL BOARD,

Respondent,

ENVIRONMENTAL DEFENSE FUND, INC.,

Intervenor.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL,

FOURTH APPELLATE DISTRICT, DIVISION ONE

JOHN P. CARTER

REGINALD L. KNOX, JR.

HorTON, KNOX, CARTER & FOOTE

895 Broadway, Suite 101

El Centro, California 92243

PAUL D. ENGSTRAND

COUNSEL OF RECORD

GEORGE J. BERGER

DEARING D. ENGLISH

JENNINGS, ENGSTRAND & HENRIKSON

A Professional Law Corporation

501 West Broadway, Suite 1400

San Diego, California 92101

(619) 557-7800

Bowne of Los Angeles, Ine., Law Printers. (213) 627-2200

INDEX TO APPENDIX

Document

Imperial Irrigation District v. State Water Re-

sources Control Board, 225 Cal. App. 3d 548 (No-

CN I I Doc cis cectuectesccoce

Judgment and Order, Superior Court, County of

Imperial, No. 58706, 5/5/88, the judgment whereby

the trial court affirmed the Board’s decision 1600

GE ec bb wducdasecnésedccgess

Statement of Decision, Superior Court, County of

Imperial, No. 58706, 4/13/88. The trial court’s

statement preceding the noted judgment. .......

Notice of Appeal, Superior Court, County of Impe-

dina cctccecdvesesteres

Order WR 88-20, SWRCB, to Submit Plan and

Implementation Schedule for Water Conservation

Measures, 9/7/88. This is the Board’s Order which

required IID “to fund... water conservation mea-

sures using District resources ....” Id. at 45; Ap-

pendix, 98. This Order, made after the Notice of

Appeal and not reviewed by the trial court, was

considered by the Court of Appeal. IJD-II, 225 Cal.

App. 3d at 556-557, 564, Appendix, 15-16, 27 ....

Imperial Irrigation District v. State Water Re-

sources Control Board, 186 Cal. App. 3d 1160

(November, 1986) (“IID-I’’) The Court of Appeal

reversed the trial court and held that the Board

had “power to adjudicate the Article X, section 2,

issue of unreasonable use of water by IID.” Id. at

SE EE eas o0cd Senden sbaceds tues

Notice of Appeal, Superior Court, County of Impe-

i Fe IS adow vencccccdncaceeces

Judgment and Order, Superior Court, County of

Imperial, No. 58706, 3/29/85. The trial court deter-

mined that the SWRCB did not have the power to

adjudicate the issue of reasonable water use.....

Order WR 84-12, SWRCB, Affirming Decision

1600 and Denying Petitions for Reconzideration,

Rh bth haaic 6 oni Meatendn dAiti nad oesqnenve ss

Decision 1600, SWRCB, Regarding Misuse of

Water by Imperial Irrigation District, 6/21/84

Board’s initial decision holding “that the failure

{by IID] to implement additional water conserva-

101

119

121

127

tion measures at this time is unreasonable...

under Article X, Section 2 of the California... .”

5G. 0 GR; SR, TP. hk ven Ws obscene knees

Portion of Memorandum of Points and Authorities

on Behalf of Imperial Irrigation District

COST PEE 600-00 névecues canecunce tee a eee:

Complaint for Declaratory Relief; and Petition for

Peremptory Writ of Mandate, In the Alternative

(C.C.P. §§ 1060, 1085, and 1094.5), Superior

Court, County of Imperial, No. 58706, 10/22/84...

Portion of Memorandum of Points and Authorities

of Imperial Irrigation District in Support of Com-

plaint for Declaratory Relief, In the Alternative for

a Writ of Mandamus, Superior Court, County of

Imperial, No. 58706, 10/22/84 .................

Detailed Index to Administrative Record for Peti-

tion for a Writ of Mandate to Review State Water

Resources Control Board Water Rights Decision

WOOD. occkcducde dees eeu dbeseseseeeeseiars

Exhibit 1, Item 12, Part II, Administrative Record;

Water Conservation Opportunities Imperial Irriga-

tion District, California (Buree written testimony

Ree FCNENEEY co vecccsenvucbedownceuneeetiies

Item 251, Part I, Administrative Record, July 18,

1984 Letter from Regional Director, United States

Department of the Interior, Bureau of Reclama-

tion, to State Water Resources Control Board ...

43 C.F.R. 417 (Revised as of October 1, 1990)...

California Water Code §§ 174, 179, 275, 1011 ....

California Constitution, Article X, Section 2 (The

1928 Constitutional Amendment) ..............

All American Canal, Boulder Canyon Project, Con-

tract for Construction of Diversion Dam, Main

Canal, and Appurtenant Structures and for Deliv-

COP OF WEG, TET OU <6 cbu esa lias tbdcisvene.

Modification Order and Order Denying Petition

For Rehearing, Court of Appeal, Fourth Appellate

District, State of Califormia ...................

Denial of Petition for Review and Request for

Order Directing Depublication, Supreme Court of

Che BOGs GF Ge code bvccadcdadassecavees

151

227

237

247

256

309

{[No. D008521. Fourth Dist., Div. One. Nov. 21, 1990.]

IMPERIAL IRRIGATION DISTRICT,

- Plaintiff and Appellant,

STATE WATER RESOURCES CONTROL BOARD,

Defendant and Respondent;

ENVIRONMENTAL DEFENSE FUND, INC.

Intervener and Respondent.

SUMMARY

In a proceeding brought by a local water district for a

writ of mandate to overturn a decision by the State Water

Resources Control Board regarding the district’s misuse

of water and requiring it to take certain actions, the trial

court denied the petition, holding that the board’s find-

ings were supported by the evidence, and that its decision

was a reasonable directive for achieving compliance with

Cal. Const., art. X, § 2, requirements regarding reasona-

ble water use. (Superior Court of Imperial County, No.

58706, James A. Malkus, Judge.*)

The Court of Appeal affirmed. It held that the trial

court did not err in denying the petition, since the board

had authority to determine the reasonableness of the

district’s water use, the board’s decision did not consti-

tute an unconstitutional interference with the district's

vested rights to use the water, nor did it violate the

separation of powers doctrine, its factual findings sup-

ported the legal conclusions it made, and there was

nothing in the board’s decision that exceeded reason or

the bounds of its discretion. (Opinion by Froehlich, J.,

with Work, Acting P. J., and Todd, J., coneurring.)

* Assigned by the Chairperson of the Judicial Council.

HEADNOTES

Classified to California Digest of Official Reports, 3d

Series

(1) Administrative Law $138 — Judicial Review and

(2)

(3)

Relief — Appellate Courts — Substantial Evidence

Test. — An appellate court’s function, in reviewing

determinations made by the superior court in its

“independent judgment” review of an administrative

agency decision, is to apply the substantial evidence

test to factual findings. Factual determinations by

the trial court will be upheld if substantial evidence,

gleaned from the administrative record, supports

them. However, the trial court’s determinations on

issues of law are fully reviewable by the appellate

court and it is bound neither by the preliminary

resolution of the same by the administrative agency

nor by the subsequent trial court decision.

Appellate Review § 119 — Dismissal — Grounds —

Mootness. — When events occur that render the

granting of relief to a litigant impossible, an appel-

late court should not proceed, but should dismiss an

appeal. A court should decide actual controversies

and not give opinions upon moot questions or ab-

stract propositions, or declare principles or rules of

law that cannot affect the matter in issue in the case

before it.

Water § 186 — Water Litigation — Jurisdiction of

State Water Resources Control Board. — Although

it is generally the responsibility of the Department of

Water Resources to investigate the waste and unrea-

sonable use of water (Wat. Code, § 225 et seq.), if the

department is unsuccessful in reforming the misuse,

the adjudication to determine misuse and remedial

—

measures taken to halt it are the responsibility of the

State Water Resources Board (Cal. Code Regs. tit. 23,

§§ 4004-4006). Thus, where an investigation by the de-

partment, conducted in response to a citizen’s complaint

about flooding of certain lands, led to a report concluding

an irrigation district was wasting water, and the district

failed to adequately cooperate with the department, the

matter was properly referred to the board, which had the

authority to determine whether that particular irrigation

use was or was not unreasonable. The board had authority

to establish standards for the reasonableness of use of

irrigation water, since it has statutory authority to exer-

cise the statutory and regulatory functions of the state in

the field of water resources (Wat. Code, § 174), its broad

authority to control and condition water use extends to

regulation of water quality and prevention of waste, its

duties and rights include ensuring compliance with the

mandate of Cal. Const., art. X, § 2, which requires all uses

of water to conform to a standard of reasonable use, and

it was the intent of the Legislature to grant the board

open-ended, expansive authority to undertake comprehen-

sive planning and allocation of water resources.

[See Cal.Jur.3d, Water, § 43; 4 Witkin, Summary of

Cal. Law (9th ed. 1987) Real Property, § 780. ]

(4) Water §62— Interference With Waters — What

Constitutes — Regulation of Water Misuse by State

Agency. — Although a decision by the State Water

Resources Board, requiring a local irrigation district

to develop and present a water conservation plan to

remedy its misuse of water and retaining jurisdiction

to review the adequacy of the district’s plans did not

interfere with the district’s contractual and statutory

entitlement to certain river waters, it did substan-

tially impact the practical use and administration by

(5)

(6)

the district of its water. However, the board’s deci-

sion did not constitute an unconstitutional interfer-

ence with the district’s vested rights to use the water,

since the district had only vested rights to “reasona-

ble” use of the water, but no right to waste or misuse

it.

Water § 134 — Jurisdiction of State Water Re-

sources Control Board Over Irrigation Districts —

Separation of Powers. — The supervision imposed on

the local irrigation district by a decision of the State

Water Resources Board that required the district to

develop and present a water conservation plan to

remedy its misuse of water and retain jurisdiction to

review the adequacy of the district’s plans did not

violate the doctrine of the separation of powers.

Although the board was directly under the supervi-

sion of the executive branch of the government, and

the district was an independent and specialized

agency, each was a creation of the Legislature, with

the board specifically given supervision over water

waste by anyone in the state (Cal. Const., art. X,

§ 2), ineluding the irrigation district, and the board

did not violate the doctrine by exercising the power

given to it. The doctrine did not apply, since both

agencies were administrative agencies, vested with

regulatory and adjudicative powers, and thus there

was no violation of any objective of separateness ©

when one regula‘ed the other.

Water § 134 — Jurisdiction of State Water Re-

sources Control Board Over Irrigation Districts —

Lack of Requirement for Board to Show District

Decisions Deference. — In determining whether a

loeal irrigation district’s use of water was reasonable,

the State Water Resources Control Board, as the

“expert” in the field of reasonable water use (Cal.

Const., art. X, § 2), was not required to give defer-

ence to the district’s decisions in the field of water

waste.

(7) Water § 186 — Jurisdiction and Venue — Jurisdic-

tion of State Water Resources Contro! Board. — The

State Water Resources Control Board, as the agency

entrusted with the orderly and efficient administra-

tion of the state’s water resources (Wat. Code,

§ 174), has the power to take whatever steps are

necessary to prevent unreasonable use of water and

its adjudicatory powers are not limited to cases

litigated by competing named parties. The board is

vested with power, on its own, and at its own initia-

tive, to investigate alleged water waste and to take

appropriate remedial action. Thus, the board had the

authority to adjudicate the issue of reasonableness of

a loeal irrigation district’s water use, even though the

dispute between the private citizen and the district

that gave rise to the initial investigation into the

district’s water use had been resolved.

(8) Water § 2 — Definitions and Distinctions — Benefi-

cial and Reasonable Use of Water Under State Con-

stitution. — The state Constitution requires not only

that water use be “reasonable” but that the state’s

water resources be put to beneficial use to the fullest

extent of which they are capable (Cal. Const., art. X,

§ 2). Thus, a comparison of uses is required, since

what is a beneficial use depends on the facts and

| circumstances of each case, and what would be a

reasonable use in one instance, due to the presence of

water and excessive need, would not be a reasonable

beneficial use in an area of scarcity and need. The

fact that a water use may be “beneficial,” does not

mean such use is necessarily “reasonable” as contem-

plated by the constitutional mandate.

(9) Water $193 — Water Litigation — Affirmance of

State Water Resources Control Board Decision —

Sufficiency of Evidence — Appeal. — In a proceed-

ing brought by a local water irrigation district for a

writ of mandate to overturn a decision by the State

Water Resources Control Board finding that the

district misused water and requiring it to develop

and present a water conservation plan to remedy its

misuse of water and retaining jurisdiction to review

the adequacy of the district’s plans, the trial court

did not err in denying the petition. The record

supported the trial court’s affirmance of the board,

where the board’s factual finding supported the legal

conclusions it made and there was nothing in the

board’s decision that exceeded reason or the bounds

of its discretion.

COUNSEL

Horton, Knox, Carter & Foote, J. Penn Carter, Regi-

nald L. Knox, Jr., Jennings, Engstrand & Henrikson,

Paul D. Engstrand and Richard G. Opper for Plaintiff

and Appellant.

John K. Van de Kamp, Attorney General, Andrea S.

Ordin, Chief Assistant Attorney General, R. H. Connett,

Assistant Attorney General and M. Anne Jennings, Dep-

uty Attorney General, for Defendant and Respondent.

John W. Krautkraemer for Intervener and Respondent.

OPINION

FROEHLICH, J. — This is an appeal from a judgment

denying the petition for writ of mandate brought by

Imperial Irrigation District (IID) to overturn a decision

of the State Water Resources Control Board (Board).

PROCEDURAL BACKGROUND AND STANDARDS

FOR REVIEW

In 1980 a private citizen requested the Department of

Water Resources to investigate alleged misuse of water

by IID which had resulted in a rise in the level of the

Salton Sea, flooding the citizen’s farmland. After an

investigation, an initial conclusion of water waste, and

unproductive communications with IID, the Department

of Water Resources referred the matter to the Board for

investigation and action. The Board held a hearing which

encompassed a period of six days late in 1983, taking

testimony and receiving evidence from a number of

sources including the original complaining citizen, the

Department of Water Resources, IID, a number of other

governmental agencies, and the intervener herein, the

Environmental Defense Fund, Inc.

On June 21, 1984, the Board issued its decision regard-

ing misuse of water by Imperial Irrigation District, desig-

nated Decision 1600 (hereafter sometimes referred to as

Board Decision) which consisted of a 71-page review of

the history of the proceedings, the evidence taken by the

Board, the Board’s findings and conclusions, and an

order requiring certain action be taken by IID. The Board

gave reconsideration to its decision upon the request

of several parties, including IID. By order dated

September 20, 1984, all modifications sought were denied

and the previous decision was affirmed.

10a

IID thereupon brought action in the superior court

seeking review of the Board’s action. By stipulation of the

parties, the trial court bifurcated its review and under-

took first to determine the question of the Board’s juris-

diction. IID contended the Board did not have the power

to render the adjudicatory decision contained in Deci-

sion 1600. (Imperial Irrigation Dist. v. State Water Re-

sources Control Bd. (1986) 186 Cal.App.3d 1160, 1162

{231 Cal.Rptr. 283]; hereafter cited as Imperial I.) The

trial court agreed with IID, ruling that “‘[t]he orders

contained in Decision 1600 are without binding effect on

{IID].’” (Jd. at p. 1164.) An appeal to this court fol-

lowed, resulting in reversal of the trial court’s ruling, the

court stating: “[WJe hold...that the Board’s authority

includes the power to adjudicate the article X, section 2,

issue of unreasonable use of water by IID.” (Jd. at p.

1171.) The appellate court also ruled that a plenary

review of the Board’s decision should be by way of writ in

the superior court. (Jbid.)

The case then being returned to the superior court, said

court undertook to review by writ of mandate the sub-

stance of Decision 1600. Using the independent judgment

test (as directed by this court, ibid.), the court deter-

mined that the Board’s findings were supported by the

evidence, that its decision was “a reasonable and bal-

anced directive for achieving compliance with Article X,

Section 2,” and that the writ should be denied. This

appeal followed.

(1) The appellate court’s function, in reviewing deter-

minations made by the superior court in its “independent

judgment” review of an administrative agency decision, is

to apply the substantial evidence test to factual findings.

Factual determinations by the trial court will be upheld if

substantial evidence, gleaned from the administrative

lla

record, supports them. (Pasadena Unified Sch. Dist. v.

Commission on Professional Competence (1977) 20 Cal.3d

309, 314 [142 Cal.Rptr. 439, 572 P.2d 53]; 8 Witkin, Cal.

Procedure (3d ed. 1985) Extraordinary Writs, § 254,

p. 879.) The trial court’s determinations of issues of law,

however, are fully reviewable by this court, and we are

bound neither by the preliminary resolution of same by

the Board nor by the subsequent trial court decision. (9

Witkin, Cal. Procedure (3d ed. 1985) Appeal, §§ 241, 242,

pp. 246-249; Shoban v. Board of Trustees (1969) 276

Cal.App.2d 534, 541 [81 Cal.Rptr. 112].)

POSTURE OF APPEAL

As IID concedes in its brief, the essential facts of this

case are not in dispute. The experts on any particular

issue were never in complete agreement, but their differ-

ences were of degree, not kind. For instance, estimates of

water lost through “canal spill’ ranged from 53,000 to

135,000 acre feet per annum; and water lost through

excessive “tailwater” ranged from 312,000 to 559,000 acre

feet per annum. There was no dispute, however, that very

large quantities of water in each case were being lost. The

dispute is whether such loss (and this is but one example

of such decisions made by the Board) was or was not

reasonable.

Such ultimate characterization of factual issues is, we

apprehend, more a conclusion of law than an issue of fact.

Since, as is conceded, there are no real factual issues, we

are not required, at least as to the principal issues on

appeal, to sift through the administrative record to search

for “substantial facts” supporting the court’s decision. To

the extent ultimate conclusions are factual, such as the

key determination made by the Board and the trial court

that IID’s use of water was “unreasonable,” our identifi

12a

cation of substantial evidence in support of the court’s

conclusion can rest upon undisputed facts before both

tribunals and our independent analysis as to whether any

reasonable court could come to the ultimate conclusion o}

fact reached by the Board and the court. (See 9 Witkir

Cal. Procedure (3d ed. 1985) Appeal, $§ 296-298, pp. 307.

311.)

IID’s assertions principally attack the conclusions o!

law made by the Board, as the same were approved by the

trial court. We are therefore required to consider whethe1

the Board’s determinations, contained in Decision 1600

are sustainable in terms of its jurisdiction, its interpreta.

tion of statutes and regulations, and its legal conclusions.

In this regard we note that the very same Decision 160(

was before this court previously, in Imperial I, supra, 18€

Cal.App.3d 1160. Our court at that time, citing existing

statutory and judicial precedent, ruled that the Board

had full authority to exercise adjudicatory and regulatory

functions in the field of water law (id. at p. 1165); that it

had “ ‘broad authority te control and condition water use.

insuring utilization consistent with public interest’ ” (id.

at p. 1166); that in such adjudication the Board could

consider the interests of concerned persons who might

not be parties to court action (id. at p. 1167); that

article X, section 2 of the Constitution requires that al!

uses of water conform to a standard of reasonable use.

and that the Board has a duty to ensure this mandate (id.

at p. 1168); that the Board’s adjudicatory authority is

“all-encompassing” (id. at p. 1169); and that the Board

shall take all necessary action in executive, legislative and

judicial forums to prevent wasté and unreasonable wate!

use. (Ibid.)

We also note that although the entire administrative

record was before this court at the time of its prio!

13a

hearing, and the court was obviously most conversant

with the facts before, and decision of, the Board, it made

no suggestion of any errors or transgressions by the

Board in its interpretation and application of law. In light

of this posture of the case it seems an uphill climb, to say

the least, for IID now to assert claims of lack of jurisdic-

tion and erroneous construction of legal principles by the

Board.

However, we concede that our prior decision was some-

what limited in scope, and that we did remit the case to

the superior court for further consideration. We also

recognize the acknowledged expertise of counsel now

before the court in the subject of water law, and the

historic and practical importance of the issues raised (or

re-raised) by IID. We therefore address anew the legal

contentions of IID. These contentions are several, and

receive different characterization in the briefs of appel-

lant and respondents. Our effort to summarize the conten-

tions results in the following outline of issues:

1. Did the Board err in the definition and exercise of

its jurisdiction? Specifically:

(a) Since the Legislature has never set standards

for the reasonableness of use of irrigation water, but

has left the same for the determination of local agen-

cies, does the Board have the power to establish stan-

dards of reasonableness?

(b) Does the Board have power to interfere with

vested water rights?

tion of powers doctrine?

l4a

2. Assuming the Board acted within its jurisdiction,

did it err in the exercise and application of its adjudica-

tory powers? Specifically:

(d) Did the Board apply the correct measure of

deference to the determinations of IID, considering

that IID acted in a legislative capacity and its determi-

nations should be reversed only upon a finding of abuse

of discretion?

(e) Assuming the Board can adjudicate controver-

sies between disputant water users, does it have any

right to investigate and regulate water use of a user

when no controversy with any other user is evident, for

the benefit of unidentified and undetermined future

users who are not within the IID district?

(f) Is the Board’s conclusion that IID’s water use.is

beneficial, and reasonable, consistent with its finding of

water waste?

(g) Is there anything in the specific order contained

in Decision 1600 which exceeds reason or the bounds of

the Board’s discretion?

THEORIES OF CASE RESOLUTION REJECTED

There are two major theories upon which our delibera-

tions could be either peremptorily terminated or substan-

tially foreshortened. Notwithstanding earnest invitations

by each party, we decline to utilize either opportunity for

sidestepping the issues just identified.

IID suggests that we should reconsider Imperial I, and

that we reverse or refine principles therein stated. Al-

though this court of course has the power to reconsider its

prior decisions, and upon occasion has done so (see, e.g.,

Canavin v. Pacific Southwest Airlines (1983) 148

1 ascitic aiakialiaa aidan

15a

Cal.App.3d 512, 525-527 [196 Cal.Rptr. 82]), we decline

the invitation in this case.

To the extent our statements in Imperial I were neces-

sary to the decision in that case (i.e., not dictum) they

have become the “law of the case” and are not now subject

to modification. (See 9 Witkin, Cal. Procedure, Appeal,

op. cit. supra, §§ 737, 738, pp. 705-708.) Insofar as state-

ments in Imperial I may not be “law of the case,” they

nevertheless constitute persuasive authority which should

be followed unless, by reason of passage of time or new

enlightenment of some sort, they are found clearly errone-

ous. (/d. at § 773, p. 742.) Not only do we find Imperial I

not erroneous, but our review convinces that “its rationale

[is] quite persuasive.” (Swinerton & Walberg Co. v. City

of Inglewood-L.A. County Civic Center Authority (1974) 40

Cal.App.3d 98, 101 [114 Cal.Rptr. 834].) We therefore

treat Imperial I as binding authority and follow it.

In a like vein, the Board suggests we should dismiss the

appeal as moot. We are advised in both appellant’s and

respondent’s briefs that since the adjudication herein,

new action has been taken by IID which effectively re-

sponds to the orders contained in Decision 1600, and that

this new action has been approved by new Board Order

WR 88-20. Taking judicial notice of WR 88-20, we find a

recitation of action taken by IID which renders the facts

summarized in Decision 1600 largely outdated, and an

| order mandating future action by IID which substantially

supplants the order contained in Decision 1600. We also

note that an agreement has been negotiated between IID

and the Metropolitan Water District which appears to

satisfy many of the financial and other problems IID

previously asserted as impediments to implementation of

Decision 1600. Further, we are advised that the Board, by

letter dated March 28, 1989, has found that “IID is in

l6a

substantial compliance with the currently applicable di-

rectives in Board Order WR 88-20.” In light of these

developments, the Board asserts that no relief is needed

by IID, and indeed that no order this court could now

make would have any practical effect.

(2) When events oceur which render the granting of

relief to a litigant impossible, the court should not pro-

ceed but should dismiss an appeal. Courts should decide

actual controversies and “not... give opinions upon moot

questions or abstract propositions, or... declare princi-

ples or rules of law which cannot affect the matter in issue

in the ease before it.” (Consol. etc. Corp. v. United A. etc.

Workers (1946) 27 Cal.2d 859, 862-863 [167 P.2d 725].)

We agree with appellant, however, that the appeal from

the determination of Decision 1600 is not moot. Both in

Decision 1600 and in Order WR 80-20 IID was required

to submit progress reports every six months until further

Board notice; and in both orders the Board retained open-

ended jurisdiction to review the adequacy of plans and

progress of IID. These retained powers over future action

of IID were based upon assertions of jurisdiction which

are the subject of this appeal. Should IID prevail in its

appeal we apprehend the result, although presumably not

returning IID to its precise posture prior to Decision

1600, would materially affect its compliance action from

this point forward. We therefore find the appeal not moot.

DISCUSSION

l. Jurisdiction

(a) Power to Establish Standards of Reasonableness

Decision 1600 constitutes a comprehensive in-depth

study of the water use practices of IID and its customers,

and reaches the conclusion that certain practices of IID

a oe

17a

are wasteful of water and hence unreasonable and a

misuse of water in violation of article X, section 2 of the

California Constitution’ and section 100 of the California

Water Code.” Relying on its own administrative regula-

tions (Cal. Code Regs., tit. 23, § 4000 et seq.) the Board

concluded it had the power to conduct hearings and to

determine whether IID’s water use was reasonable or

wasteful.

‘Article X, section 2 provides: “It is hereby declared that because

of the conditions prevailing in this State the general welfare requires

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 pre-

vented, and that the conservation of such waters 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. The right to water or to the

use or flow of water in or from any natural stream or water course 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 unreasona-

ble method of use or unreasonable method of diversion of water.

Riparian rights in a stream or water course attach to, but to no more

than so much of the flow thereof as may be required or used

consistentently with this section, for the purposes for which such

lands are, or may be made adaptable, in view of such reasonable and

beneficial uses; provided, however, that nothing herein contained

shall be construed as depriving any riparian owner of the reasonable

use of water of the stream to which the owner’s land is riparian under

reasonable methods of diversion and use, or as depriving any appro-

priator of water to which the appropriator is lawfully entitled. This

section shall be self-executing, and the Legislature may also enact

laws in the furtherance of the policy in this section contained.”

Water Code section 100 contains language paralleling the constitu-

tional provision, affirming that waste and unreasonable use of water

are precluded.

*All statutory references are to the California Water Code unless

otherwise specified.

18a

IID challenges the Board’s basic assertion of jurisdic-

tion. IID admits that water use by Constitution and

statute must be reasonable, but contends that insofar as

use of water for irrigation purposes is concerned the

Legislature either expressly or impliedly has left the

decision as to what is reasonable to local agencies, such as

IID, thus precluding the Board from entering this deci-

sion-making field. IID’s argument is largely reliant on

absence from statutes of any specific delegation of this

power to the Board, and is bolstered by the citing of

miscellaneous examples of the Legislature’s handlirg of

related issues.

Section 1004 (adopted in 1913 for purposes which seem

irrelevant to today’s circumstances), for example, pro-

vides that use of no more than two and one-half-acre feet

of water per acre of “uncultivated areas of land not

devoted to cultivated crops” is not a useful or beneficial

purpose. Sections dealing with water from artesian wells,

adopted in 1907, define in some detail what use is reason-

able and what is wasteful. ($§ 301-303.) More recent

legislation (§§ 1009, 375) dealing with water-saving and

water-reclamation devices specifically is made inapplica-

ble to agricultural uses. Sections 1011 et seq., adopted in

1979, referring to conservation of water and the sale of

conserved water, do not provide any specific means for

adjudication of reasonableness.

Even the Agricultural Water Management Planning

Act (adopted in 1986 and hence admittedly peripheral to

our deliberations) provided that water management plans

to achieve water conservation would be administered by

the Department of Water Resources, not the Board

(State Water Resources Control Board). (See § 10800 et

seq.)

19a

IID also points to miscellaneous provisions which ap-

pear to vest in local agencies, such as IID, the power to

determine which irrigation practices are “reasonable.”

Referring again to the Agricultural Water Management

Planning Act, IID notes that under section 10840 et seq.

the preparation of plans for water management is the

responsibility of each water supplier, and that “[a]n

agricultural water supplier shall implement its plan

adopted pursuant to this chapter in accordance with the

schedule set forth in its plan, as determined by the

governing body of the agricultural water supplier.”

(§ 10843.)

Referring to a somewhat related program, IID finds in

the Water Conservation and Reclamation Projects Act of

1985 (§11950 et seq.) a recognition of the need to

conserve water on a statewide basis “for use in areas of

the state with inadequate local supplies” (§ 11951 subd.

(f)), but notes that even here emphasis is put upon local

administration, section 11952 subd. (a) stating that the

purpose is “to encourage local agencies and private enter-

prise to implement potential water conservation....”

Finally, IID notes that in the 1982 legislation, relating

to transfers of water between local agencies, an entire

subchapter was devoted to “Deference to Decisions by

Local or Regional Agencies,” including a statement, in

section 380 subdivision (c), that “[m]any water manage-

ment decisions can best be made at a local or regional

level” and, in section 381, that “[t]he authority of local or

regional publie agencies... shall control over any other

provision of law which contains more stringent limitations

on the authority of a particular public agency to serve

water for use outside the agency... .”

All of this, we fear, is a scissors-and-paste job linking

together bits of law which are either time specific or

20a

subject specific, in an attempt to fabricate a blanket rule

to govern a state agency’s jurisdiction. We really need

look no further than our own precedent in Jmperial I to

reject the argument. (3) The history of the Board’s

jurisdiction is detailed at length therein. (Jmperial I,

supra, Cal.App.3d at pp. 1165-1169.) We repeat in very

summary form that:

(1) By statute (4174) the Board “shall exercise the

adjudieatory and regulatory functions of the state in the

field of water resources.”

(2) The Board “ ‘has been granted broad authority to

control and condition water use ... [extending] to regu-

lation of water quality and prevention of waste.’ ”’ (Citing

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

Dist. (1977) 20 Cal.3d 327, 341-342 [142 Cal.Rptr. 904,

572 P.2d 1128].)

(3) The Board’s duties and rights include ensuring

compliance with the mandate of article X, section 2 of the

Constitution, which requires that “All uses of water...

must now conform to the standard of reasonable use.”

(Citing National Audubon Society v. Superior Court

(1983) 33 Cal.3d 419, 443 [189 Cal.Rptr. 346, 658 P.2d

709 ].)

(4) It was the intent of the Legislature to grant the

Board broad, open-ended expansive authority to under-

take comprehensive planning and allocation of water re-

sources. (Citing In re Waters of Long Valley Creek Stream

System (1979) 25 Cal.3d 339, 348-349 [158 Cal.Rptr. 350,

599 P.2d 656].)

We do not stop, however, with the citation of these

broad principles, but attempt more specifically to focus on

the question of power to determine the reasonableness of

an irrigation use. At the outset, it is noted that authority

2la

relevant to governance of I!D’s activities is vested in both

the Department of Water Resources and the Board

(State Water Resources Control Board). The responsibil-

ities of these two agencies are somewhat overlapping and

undoubtedly confusing to those not regularly conversant

with California water law (see explanation contained in

California Water Law in Perspective, 68 West’s Ann.

Water Code (1971 ed.) LXXXV-XCV). It is generally,

however, the responsibility of the Department of Water

Resources in the first instance to investigate waste or

unreasonable use of water. (§ 225 et seq.) If the depart-

ment is unsuccessful in reforming the misuse, the adjudi-

cation to determine misuse and the remedial measures

taken to halt the same are the responsibility of the Board.

(Cal. Code Regs., tit. 23, $§ 4004-4006. )

The procedures leading to Decision 1600 tracked this

statutory path. An investigation by the Department of

Water Resources, conducted in response to the citizen’s

complaint about flooding of lands near the Salton Sea, led

to a report which coneluded water waste. Failing to obtain

what it deemed adequate cooperation from IID, the mat-

ter was then referred to the Board. Board hearings and

conclusions followed in accordance with the statutory and

regulatory pattern.

We start with the understanding, as per our numbered

eonelusions above, that the Board’s obligations in the

field of water use adjudication are broad, plenary and all-

encompassing. We proceed by finding that the question of

IID’s use or misuse of water was properly brought to the

attention of the Board. With this background can one

seriously contend that the decision as to whether a partic-

ular irrigation use is or is not reasonable is precluded the

Board? We answer our own question by noting that IID

very seriously takes this position. Respectfully, we must

22a

reject the contention. To say on the one hand that water

conservation is the responsibility of the Board, and then

to preclude it from measuring waste in irrigation prac-

tices, would be an absurd position.

We conclude the Board had jurisdiction to rule on the

question whether irrigation practices of IID were reason-

able or wasteful.

(b) Interference With Vested Rights

Water used by IID and its customers is diverted from

the Colorado River. Diversion instrumentalities, includ-

ing dams, power plants and the All-American Canal,

which brings water from the river to the Imperial Valley,

were authorized by the Boulder Canyon Project Act,

enacted December 21, 1928. (43 U.S.C. § 617 et seq.) The

Boulder Canyon Project Act vested in the Secretary of

the Interior the power to enter into contracts for the

delivery and allocation of water to users in the southwest-

ern United States. The several interested states were

unable to come to an agreement as to water allocation,

and their entitlements were finally resolved by the United

States Supreme Court in 1963. (Arizona v. California

(1963) 373 U.S. 546 [10 L.Ed.2d 542, 83 S.Ct. 1468].)

Allocation of Colorado River water among users in South-

ern California was achieved through mutual agreement,

however. The agreement, termed the “California Seven-

Party Agreement” was executed on August 18, 1931, and

remains in effect. Amount of entitlement and priority of

distribution to IID are established in this agreement.

IID’s water rights. therefore, are the result of federal

statute, United States Supreme Court decision, and a

seven-party agreement allocating water among Southern

California users. Water rights within the state of Califor-

nia traditionally were derived from riparian rights or

23a

entitlement based upon prior appropriation. (See histori-

eal discussion in United States v. State Water Resources

Control Bd. (1986) 182 Cal.App.3d 82, 100-102 [227

Cal.Rptr. 161].) It is conceivable that IID’s water rights,

based as they are upon a unique blend of statutory and

contractual origins, could be characterized as somehow

more stable or securely vested than water rights from

traditional sources. IID does not, however, make this

claim. It simply contends that a right to use water, no

matter how derived, once vested, becomes a property

right which cannot be undermined without due

compensation.

Illustrative of IDD’s broad contention is the following

quote from United States v. State Water Resources Control

Bd., supra, 182 Cal.App.3d at page 101: “It is... axio-

matie that once rights to use water are acquired, they

become vested property rights. As such, they cannot be

infringed by others or taken by governmental action

without due process and just compensation.” The essence

of IID’s contention, therefore, is that the Board was

without power to deprive IID of its discretionary power of

determination of water use without providing compensa-

tion (which the Board admittedly has no power to

provide).

As a preliminary matter we should note exactly what

the Board did require of IID. The principal mandate

contained in the Board Decision was an injunction that

IID develop and present a water conservation plan. The

trial court in its memorandum of decision noted that

“except for requiring the District to repair defective

tailwater structures, Decision 1600 itself requires no

specific conservation measures, nor does it compel IID to

sell, transfer, or otherwise convey water to the Metropoli-

tan Water District or any other party. Decision 1600

24a

simply requires the District to prepare plans to remedy

its misuse of water, while retaining jurisdiction to review

the adequacy of IID’s plans.”

We are unable, however, to agree that Decision 1600

did not substantially erode IID’s otherwise virtually com-

plete control over its water use. IID was required within a

period of eight months to submit a plan for reservoir

construction and to affirm its intent to construct one

reservoir per year. Once a general plan of water conserva-

tion was achieved, IID was required to submit progress

reports every six months “until the objectives have been

achieved.” The board reserved jurisdiction to monitor IID

progress and to “take such other action” as might be

required to assure compliance with an approved plan.

There can be no doubt that the Board’s intrusion into

IID’s previously untrammeled administration of the use

of water in its district was substantial. As often stated in

water law cases, “what is meant by a water right is the

right to use the water....” (Id. at p. 100.) While the

Board’s decision in no way interfered with IID’s contrac-

tual and statutory entitlement to Colorado River water, it

most certainly presaged an interference with IID’s utili-

zation of that water once it traversed the All-American

Canal.

Our conclusion that the Board Decision substantially

impacted the practical use and administration by IID of

its water does not, however, result in our acceptance of

IID’s contention of unconstitutional interference with

“vested” rights. Historie concepts of water “rights” in

California were dramatically altered by the adoption in

1928 of the above referenced constitutional amendment.

(Id. at pp. 105-106.) Our Supreme Court, in Gin S. Chow

v. City of Santa Barbara (1933) 217 Cal. 673 [22 P.2d 5],

acknowledged that the new provision altered previously

25a

vested rights. “As already observed the amendment pur-

ports only to regulate the use and enjoyment of a prop-

erty right for the public benefit, for which reason the

vested right theory cannot stand in the way of the opera-

tion of the amendment as a police measure. A vested right

cannot be asserted against it because of conditions once

obtaining. [Citation.] It has been long established that all

property is held subject to the reasonable exercise of the

police power and that constitutional provisions declaring

that property shall not be taken without due process of

law have no application in such eases.” (Jd. at p. 703.)

The concept of the dimension of rights remaining to the

water user after the constitutional amendment was fully

developed in Joslin v. Marin Mun. Water Dist. (1967) 67

Cal.2d 132 [60 Cal.Rptr. 377, 429 P.2d 889]. In that case

a lower user attempted to enjoin upstream diversion by a

municipal water company upon the contention that the

downstream prior use for deposit of sand and gravel was

a vested, protectible use. The Supreme Court held that

simply because a use is beneficial it does not become

“reasonable” under the Constitution. Denying the plain-

tiff's assertion of compensability for its loss of water, the

court focused on the nature of water rights after 1928.

“While plaintiffs correctly argue that a property right

cannot be taken or damaged without just compensation,

they 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.... [While a] vested right as now defined

may not be destroyed or infringed upon without due

process of law or without just compensation ... [there is]

no provision of law which authorizes an unreasonable use

or endows such use with the quality of a legally pro-

tectible interest merely because it may be fortuitously

beneficial to the lands involved.” (Jd. at pp. 143-144; see

26a

also Peabody v. City of Vallejo (1935) 2 Cal.2d 351 [40

P.2d 486]; People ex rel. State Water Resources Control Bd.

v. Forni (1976) 54 Cal.App.3d 743 [126 Cal.Rptr. 851];

National Audubon Society v. Superior Court (1983) 33

Cal.3d 419, 443, fn. 23 [189 Cal.Rptr. 346, 658 P.2d 709]

[‘“‘After the effective date of the 1928 amendment, no one

can acquire a vested right to the unreasonable use of

water.”’].)

(4) Put simply, IID does not have the vested rights

which it alleges. It has only vested rights to the “reasona-

ble” use of water. It has no right to waste or misuse

water. The interference by the Board with IID’s misuse

(this finding of fact by the Board being accepted for

purposes of the present issue) does not constitute a

transgression on a vested right.

(ec) Violation of Separation of Powers Doctrine

IID argues that its administration of its district’s

water use, including regulations governing tailwater man-

’ agement, canal spills, ete., is legislative in nature. Appar-

ently presuming that the actions of the Board were

adjudicatory and hence “judicial” in nature, IID claims a

breach of the separation of powers doctrine.

“The separation of powers doctrine establishes that

none of the coordinate branches of our tripartite govern-

ment may exercise power vested in another branch. Arti-

cle III, section 3, of the California Constitution provides:

‘The powers of state government are legislative, executive,

and judicial. Persons charged with the exercise of one

power may not exercise either of the others except as

permitted by this Constitution.’ (Estate of Cirone

(1987) 189 Cal.App.3d 1280, 1286 [234 Cal.Rptr. 749].)

IID contends that the decisions related to its adminis-

tration of water use in its district are discretionary

4 inet,

27a

nc te ale ot

legislative decisions reserved by law to its board of

directors. IID admits that the Board, as an adjudicatory

body, has the power to resolve disputes in California

relating to water rights. It contends, however, that the

Board here has gone far beyond dispute resolution. In its

. Decision 1600 (as well as its subsequent Order WR 88-20,

which IID asks us to notice although it is subsequent to

the decision giving rise to this appeal), the Board has

gone well beyond the adjudication of any controversy. It

has in fact, IID claims, engaged in the adoption of

injunctive-type relief imposing upon IID the obligation of

construction of capital improvements, adoption of new

water use regulations, and probably the assessment of

additional charges to its users.

The doctrine of “separation of powers” has been uti-

lized in California to strike down interference by one of

the primary branches of government with another. Its

most typical application has been seen in the admonition

that “a court may not compel the Legislature to enact a

legislative measure....” (Mandel v. Myers (1981) 29

Cal.3d 531, 539 [174 Cal.Rptr. 841, 629 P.2d 935].) The

doctrine was thus the underpinning for determinations

that the court could not compel the appropriation of

funds by the state Legislature to pay unemployment

insurance obligations owed the City of Sacramento (City

of Sacramento v. California State Legislature (1986) 187

Cal.App.3d 393 [231 Cal.Rptr. 686]); and that the court

was precluded from overturning a legislative cap on

appropriations for appointed counsel fees (Estate of

Cirone, supra, 189 Cal.App.3d at p. 1280). In Mandel v.

Myers, supra, 29 Cal.3d 531 the transgression upon the

separation of powers was found to have been committed

by the Legislature, when it redetermined the propriety of

payment of a $25,000 fee which had been adjudicated

owing in judicial proceedings. [T]he fundamental sepa-

28a

ration of powers doctrine embodied in article III, section

3 of the California Constitution ... forbids any such legis-

lative usurpation of traditional judicial authority.” (Jd. at

p. 547.)

The separation of powers doctrine has also been applied

to restrict judicial tampering with the legislative preroga-

tives of administrative agencies. In Sklar v. Franchise Tax

Board (1986) 185 Cal.App.3d 616 [230 Cal.Rptr. 42], the

court found itself precluded from mandating the adoption

by the Franchise Tax Board of regulations pertaining to

the deductibility of expenses for alcoholic beverages,

terming this a “legislative” decision. (Jd. at p. 624.) A

trial court’s order to an agency with jurisdiction over

airport lands was reversed upon a determination that it

was too broad, and “impermissibly sought to judicially

compel the performance of a quasi-legislative act by an

administrative body.” (City of Coachella v. Riverside

County Airport Land Use Com. (1989) 210 Cal.App.3d

1277, 1293 [258 Cal.Rptr. 795].)

Relation of the general “separation of powers”’ doctrine

to the Board’s jurisdiction over IID is not answered,

however, by these precedents — precedents which deal

with “pure” governmental functions. The separation of

powers concept was first evidenced in the governments

that emerged from the American and French revolutions.

Although even at these early times no true or complete

separation was ever achieved, the three branches of gov-

ernment nevertheless existed in relatively pure form.

(See 1 Davis, Administrative Law Treatise (2d ed. 1979)

§ 2:4, pp. 67-72.) Time has blurred the purity of division

of governmental functions, however, particularly with the

advent of administrative agencies. As stated in Bizby v.

Pierno (1971) 4 Cal.3d 130, 142 [93 Cal.Rptr. 234, 481

P.2d 242]: “Possibly the most significant structural

29a

change in our government since the date of its founding

has occurred in the twentieth century development of a

huge administrative bureaucracy. To deal with the mani-

fold problems of modern society these administrators

have been delegated substantial quasi-legislative and

quasi-adjudicative powers.”’

We here deal with the quasi-adjudicative and quasi-

legislative regulation by the Board of the quasi-adjudica-

tive and quasi-legislative activities of IID. Does the sim-

plistic concept of “separation of powers” have any

application? Perhaps a closer focus on the agencies them-

selves will enlighten.

IID was organized in 1911 under enabling legislation

adopted in 1897. (Imperial Land Co. v. Imperial Irr. Dist.

(1916) 173 Cal. 660, 662 [161 P. 113].) The process of

formation involved the presentation of a petition by land-

owners to the county board of supervisors, with the

supervisors’ approval formalized by recordation in the

office of the county recorder. Thereafter the affairs of the

irrigation district were to be governed by a board of

trustees with the power to impose assessments on land

(through disinterested commissioners), plan for irriga-

tion works, and achieve construction, maintenance and

repair of same. Included within the powers of the trustees

was the power to condemn rights of way. (See Historical

Note, 69 West’s Ann. Water Code (1984 ed.) § 20500, pp.

35-37.) The original enabling statute was replaced in 1943

by a new statutory framework commencing with section

20500. We find no indication that the new statutory

framework to any degree reduces the quasi-legislative and

quasi-adjudicative discretion vested in_ irrigation

districts.

For instance, “A district may do any act necessary to

furnish sufficient water in the district for any beneficial

30a

use.’ (§ 22075.) It has the power to adopt regulations to

assure equitable distribution of water ($§ 22085, 22085.5,

22086) and may take direct action to assure compliance

with its rules ($§ 22081.5-22084.5). An irrigation district

has been described as having “many express powers and

also broad general powers.” (25 Ops.Cal.Atty.Gen. 164,

165 (1955).) Irrigation districts, although not political

subdivisions of the state, are public agencies performing

governmental functions — agencies of the state and “sub-

servient to it.” (In re Lindsay-Strathmore Irr. Dist.

(D.C.Cal. 1937) 21 F.Supp. 129, 134.)

The Board, unlike IDD, is a political subdivision of the

state. It is a part of the Resources Agency (§ 175), which

in turn is one of the several principal administrative

agencies of the state (Gov. Code, § 12800), responsible to

and appointed by the Governor (Gov. Code, §$§ 12801,

12802.5, 12850.4), and hence logically more a part of the

executive branch than any other branch of government.

Like many other federal and state agencies, however (see

1 Davis, Administrative Law Treatise, supra, § 2.5, p. 74

passim) the Board’s powers and responsibilities are a

blend of judicial, legislative and administrative concepts.

Generally, it “exercise[{s] the adjudicatory and regula-

tory functions of the state in the field of water resources.”

(§ 174.) It has investigative powers (§§ 1051(a),

1051(b) ); it may determine disputes related to appropria-

tion of water (§ 1051(¢)) and has the power to issue and

condition permits for appropriation (§ 1258); it deter-

mines conflicting riparian rights to use of stream waters

(§§ 2500-2900); and it acts as a referee in water disputes

when appointed by the court (§§ 2000-2076). Most rele-

vant to our case, the Board has power to enforce the

constitutional requirement of “reasonableness” in water

use, and to investigate and act upon allegations of waste

or misuse of water. (19 Pacific L.J. 957, as reprinted in

3la

Overview of California Water Rights and Water Quality

Law, 68 West’s Ann. Water Code (1971 ed. 1990 pocket

supp.) XXIII; People ex rel. State Water Resources Contral

Bd. v. Forni, supra, 54 Cal.App.3d at p. 753; Cal. Code

Regs., tit. 23, §§ 4000-4007; Imperial I, supra, 186

Cal.App.3d at p. 1169.)

(5) The case before us, then, is one involving a “line”

water agency created to contract for water acquisition

and delivery, to construct capital improvements, to assess

water users, and to regulate water use within its district.

Juxtaposed against this agency status is that of another

agency, perhaps better described as ‘staff’ in the sense

that it delivers no water itself, but is charged with

supervision of the water activities of other agencies. It is

apparent to us that the very purpose of the Board was to

serve as supervisor and regulator of the activities of

actual water deliverers, at least in the specific areas

delegated to it, such as the prevention of waste. Each

agency is vested with detailed specific, and manifold

implied, powers which partake of legislative, judicial and

administrative powers. In these circumstances it seems

implausible to assert that the supervision imposed by the

Board violates “separation of powers.”

There is, in fact, no theoretical “separation of powers”’

in the activities of these agencies. Although one (the

Board) is directly under the supervision of the executive

branch of government and the other (IID) is an indepen-

dent and specialized agency, each is the creation of the

Legislature. ‘“[T]he powers of public [agencies] are de-

rived from the statutes which create them and define their

functions.” (25 Ops.Cal.Atty.Gen., supra, 164, 165.) Hav-

ing created both agencies, and having specifically given

the Board supervision over water waste permitted by

anyone in the state, including IID, it is nonsensical to say

32a

that the Board violates some theoretical concept of power

separation when it exercises the very power given it.

We have labored long on this issue, perhaps because the

philosophical concept of separation of powers is itself

difficult to grasp. The short answer might have been

better: simply that the concept of “separation of powers’”’

has no application in this case because both parties are

administrative agencies, both vested with regulatory and

adjudicative powers, and hence there is no violation of

any objective of separateness when one regulates the

other.

2. Alleged Errors in Adjudication

(d) Incorrect Test of Agency Review

(6) IID contends that its decisions, under review by

the Board, were quasi-legislative in nature, and that they

should have been aceorded deference by the Board, to be

reversed only upon “clear and convincing” evidence.

IID here confuses, we believe, the standard of review

appropriate for the Board with that which is proper for

judicial review of quasi-legislative determinations of an

agency. Deference is required of reviewing courts with

3See, for instance, Faulkner v. Cal. Toll Bridge Authority (1953) 40

Cal.2d 317, 329 [253 P.2d 659] (court review of conclusions of

agency after it has conducted factual hearing should give deference

to the agency expertise); Industrial Welfare Com. v. Superior Court

(1980) 27 Cal.3d 690, 702 [166 Cal.Rptr. 331, 613 P.2d 579] (judicial

review of quasi-legislative action of the Industrial Welfare Agency

limited to determination of arbitrariness or entire absence of eviden-

tiary support); City of Chula Vista v. Superior Court (1982) 133

Cal.App.3d 472, 485 [183 Cal.Rptr. 909] (judicial review of legisla-

tive activity limited to determination whether the agency acted within

its delegated authority and whether its action was reasonable as

opposed to arbitrary, capricious or lacking in evidentiary support);

Higgins v. City of Santa Monica (1964) 62 Cal.2d 24, 31 [41 al Rotr.

33a

respect to such determinations of agencies because of the

expertise and special delegation of responsibility to the

agency. That is not the case here. Both IID and the Board

are agencies with presumed expertise in the field of water

use. Although IID is a venerable entity through whose

canals has passed perhaps more water than has traversed

any other man-made way, it cannot claim a corner on the

expertise of “reasonable” water use. From the authorities

cited above, and particularly our own prior decision in

imperial I, we conclude that the Board is the expert in

that field. The Board had no eall to defer to the decisions

of IID in the field of water waste.*

(e) Lack of Disputants

(7) The initial investigation into IID water use was

initiated by a complaint from a citizen whose lands near

the Salton Sea were being flooded. That dispute was

settled before rendition of Decision 1600. The Board’s

proceedings continued, however. Also, the Board’s adjudi-

cation dealt with concerns much broader than the flooding

of Mr. Elmore’s farmland. The ultimate thrust of Decision

1600 was to require planning and implementation of

: measures to prevent waste of large amounts of water (at

least 100,000 acre feet annually) for the benefit of people,

9, 396 P.2d 41] (judicial review of legislative action limited to

determination as to whether it is “‘ “palpably arbitrary and beyond

rational doubt erroneous” ’ ”’)

‘See the parallel situation of the Board’s exercise of power in

connection with wastewater reclamation. In Environmental Defense

Fund, Inc. v. East Bay Mun. Utility Dist., supra, 20 Cal.3d at pages

343-344, the Supreme Court noted the Legislature's intent to vest

regulation in the Board, and advised that disputes relating to water

reclamation should first be adjudicated by the Board, and that the

courts should defer to Board expertise.

34a

generally, in the state i.e., for the benefit of undetermined

and unnamed future potential users.

IID claims that the continuance of the adjudication and

the making of the order, in these circumstances, were

error. IID points to the fact that all previous reported

cases involving exercise of jurisdiction by the Board have

dealt with actual disputes between identified and existing

parties. There is, IID claims, no justiciable controversy

here whvh permits the Board to interfere. The Board

concedes that all prior cases have arisen from controver-

sies between two or more water users, and hence that the

instant case is unique.

The lack of specific precedent does not impair or

preclude the Board's actions. The constitutional and stat-

utory imperative is that the water resources of the state

be put “to beneficial use to the fullest extent,” and that

“unreasonable use...of water be prevented.” (§ 100.)

The agency entrusted with the “orderly and efficient

administration of the water resources of the state” is the

Board. (§ 174.) In United States v. State Water Resources

Control Bd., supra, 182 Cal.App.3d at page 142, it was

stated that “the Board has the separate and additional

power to take whatever steps are necessary to prevent

unreasonable use or methods of diversion [of water].” In

our own previous decision in this case, Imperial I, we

concluded that the Board had “adjudicatory authority in

the matter of unreasonable use even to the extent of

ordering [IID] to submit a plan to conserve water,” and

concluded that ‘the Board’s authority includes the power

to adjudicate the article X, section 2, issue of unreasona-

ble use of water by IID.” (Imperial I, supra, 186

Cal.App.3d at pp. 1170-1171.)

We did not particularly focus, in Imperial I, upon the

lack of specific competing named parties in the case. our

a meena eae

35a

holding, however, was broad and unlimited in describing

the powers of the Board. We have found nothing in

statutory or case authority indicating any intention on the

part of the Legislature to limit the Board’s adjudicatory

powers to cases litigated by competing named parties. We

believe the Legislature intended to vest the Board with

power, on its own and at its own initiative, to investigate

alleged water waste and to take appropriate remedial

action.

(f) Inconsistent Findings

IID contends that all of the water introduced into its

district is used for “beneficial’’ purposes, including the

excess water which finds its way to the Salton Sea. Such

water prevents excee*ive salinization of the sea, protect-

ing it as a fishery and wildlife sanctuary. It also finds

beneficial use in the generation of electric power. There

has never been, IID contends, an adjudication of constitu-

tional misuse of water when the water is being beneficially

used and there is no controversy between competing

water users. Further, IID contends, both the Board and

the attorney general have conceded that IID’s use of

water is “reasonable.” Having made this concession, it is

inconsistent and reversible error for the Board to reach a

bottom-line conclusion of unreasonable use. IID’s argu-

ment is bolstered, it contends, by the superior court's

finding that “The Board did not find that IID’s uses of

water, in themselves, were unreasonable.”

We believe IID has mischaracterized the Board’s find-

ings. The Board found (and IID does not dispute) that

substantial losses of water resulted from canal spills,

excess tailwater (the water running off the “tail” of a

farm as the result of excess water being introduced at the

“head” of the system), and other wasteful practices, such

as canal seepage. Such runoff of water provided no alter-

36a

native use for downstream users since IID’s customers

are at the end of the river, so to speak, the downstream

being the Salton Sea. The totality of this waste of water

was found by the Board to be “unreasonable and...a

misuse of water.” Admitting that fresh flow into the

Salton Sea might have some temporary fishery benefit, the

Board found it to be an unpersuasive factor in that

“prolonged delay in water conservation measures would

not save the fishery for an appreciable length of time.”

(8) IID is also in error in contending that all “benefi-

cial’”’ uses are by definition “reasonable.” The Constitu-

tion requires not only that water use be “reasonable” but

that “the water resources of the State be put to beneficial

use to the fullest extent of which they are capable.”

Obviously, this mandate requires a comparison of uses. As

stated in Tulare Dist. v. Lindsay-Strathmore Dist. (1935) 3

Cal.2d 489, 567 [45 P.2d 972], “What is a beneficial use,

of course, depends upon the facts and circumstances of

each case. What may be a reasonable beneficial use, where

water is present in excess of all needs, would not be a

reasonable beneficial use in an area of great scarcity and

great need. What is a beneficial use at one time may,

because of changed conditions, become a waste of water

at a later time.”

In Joslin v. Marin Municipal Water Dist., supra, 67

Cal.2d at page 141, the court noted the limited water

resources available to the state, and that “conservation

[must] be exercised ‘in the interest of the people and for

the publie welfare.’ ’’ These cases, along with others which

have been cited above, note the evolution of water rights

from a concept of absolute right of use to one of compara-

tive advantage of use. The fact that a diversion of water

may be for a purpose “beneficial” in some respect (as for

desalinization of lakes or generation of electric power)

does not make such use “reasonable” when compared with

— |

37a

demands, or even future demands, for more important

uses.

(g) Excessive Mandates

The tenor and taste of the appeal is that IID is being

unfairly treated. It has occupied a position of strength,

discretion and vested right in a geographical] part of the

country that is “far western,” embra:ing a philosophy

that is independent in every sense of the word. Recent

trends in water use philosophy and the administration of

water law have severely undermined the positions of

districts such as IID. IID’s core complaint, if not com-

pletely valid, is at least understandable. It has been

deprived of a great deal of the property rights which it

thought were inherent in its allocation of Colorado River

waters, made many years ago by federal and state statute

and private contract. The loss of these rights undoubtedly

will result in practical and monetary losses for [ID and

its customers. An obvious conclusion is that Imperial |

and the rulings of the Board have eroded IID’s bargain-

ing position in terms of the sale of its water to other

districts, such as the Metropolitan Water District.

IID’s reaction to these reversals in bargaining power

takes form in recondite ruminations about philosophical

legal principles, such as the separation of powers argu-

ment; and is also evidenced by simpler and more practical

complaints about the length and breadth of the Board’s

injunction. While the superior court concludes that all the

Board has really done is require a little planning of IID,

IID’s perception of the matter is wholly different, viewing

the Board’s actions as next to sinister. We deal in this

section briefly with several practical complaints which we

gather under the heading of alleged ‘excessive

mandates.”

38a

IID reviews its past record of activities designed to

conserve water, reminding that in the last 20 years or so it

has constructed four reservoirs, evaluated cost effective-

ness, lined 732 miles of canals, constructed 6 additional

units for power production, initiated conservation stud-

ies, and achieved water use efficiencies which are above

average for comparable projects. IID itself has recog-

nized the desirability of water conservation by adopting

in January of 1984 a resolution calling for reduction of

inflow to the Salton sea by 100,000 acre feet annually. In

light of this evidence of responsible water trusteeship,

IID finds the Board’s mandates (such as item 1.2 of the

Board’s order, that IID require its water users to repair

defective tailwater structures by a certain date in 1985)

to be excessive.

A specialized category of criticism leveled by IID is

that the Board’s broad injunction overlooks the principle

that it should have selected a less drastie but practical

remedy, characterized as “physical solution.” A “physical

solution” involves the application of general equitable

principles to achieve practical allocation of water to com-

peting interests so that a reasonable accomodation of

demands upon a water source can be achieved. (See

Hutchins, The California Law of Water Rights (1956)

351-354.) IID refers to the principle as a means of

avoiding water waste without unreasonably or adversely

affecting the rights of the parties (citing City of Los

Angeles v. City of San Fernando (1975) 14 Cal.3d 199, 290

[123 Cal.Rptr. 1, 537 P.2d 1250]) and complains that the

Board attempted no such practical resolution of this

matter.

Finally, and mirroring other aspects of its presentation

reflected above, IID complains that the Board, tradition-

ally an investigative body and an arbiter of disputes

™

39a

between parties, has switched roles and embraced an

unreasonable position of sua sponte policing of indepen-

dent water districts. The Board, IID claims, has become

“derailed,” the result of which is an overbroad order not

supported by substantial evidence.

Referring first to the specific contention regarding

“physical solution”: we accept the Board’s rejoinding

analysis, as set forth on pages 28 and 29 of Decision 1600.

The concept of a “physical sclution” is the aceommoda-

tion of competing interests by the making of a Solomon-

like decision which satisfies, to some reasonable degree,

everyone's interest. The sine qua non of a physical solu-

tion is the existence of specific conflicting demands which

can be arbitrated. That is not the case here, and no simple

or expedient “physical solution” is possible. We observe,

however, that in many respects the Board’s decision is a

physical solution. Decision 1600 certainly addresses phys-

ical and practical problems, and attempts to achieve

resolution of same by means which it has coneluded IID

has the power to achieve without unreasonable

expenditures.

(9) Addressing the more general complaints of exces-

siveness, we can but refer to the function of this court,

which is to review the record for substantial evidence

supporting the trial court’s affirmance of the Board. We

have, we fear, already restated and reworked too much of

the detail of this record. It is appropriate at this point to

decline further recitation. Suffice it to say that the find-

ings of the Board amply support the legal conclusions it

made, as well as the orders it imposed. We have decided

that the Board had jurisdiction to enter the field upon the

legal and practical grounds it chose to occupy. Finding its

conclusions and determinations to be well supported, we

have no choice but to affirm them.

40a

CONCLUSION AND DISPOSITION

The trial court’s judgment is affirmed.

We note from IID’s brief that it has “engaged for three

decades in costly and critical litigation about its water

rights.’ It asks that we reverse all the lengthy delibera-

tions that have preceded our hearing and requests even

again an “opportunity to more extensively brief the

issue.”

All things must end, even in the field of water law. It is

time to recognize that this law is in flux and that its

evolution has passed beyond traditional concepts of

vested and immutable rights. In his review of our Su-

preme Court’s recent water rights decision in Jn re Water

of Hallett Creek Stream System (1988) 44 Cal.3d 448 [243

Cal.Rptr. 887, 749 P.2d 324], Professor Freyfogle ex-

plains that California is engaged in an evolving process of

governmental redefinition of water rights. He concludes

that “California has regained for the public much of the

power to prescribe water use practices, to limit waste, and

to sanction water transfers.”’ He asserts that the concept

that “‘water use entitlements are clearly and permanently

defined,” and are “neutral [and] rule-driven,” is a pre-

tense to be disearded. It is a fundamental truth, he writes,

that “everything is in the process of changing or becom-

ing” in water law.”

In affirming this specific instance of far-reaching

change, imposed upon traditional uses by what some

claim to be revolutionary exercise of adjudicatory power,

we but recognize this evolutionary process, and urge

reception and recognitioi: of same upon those whose work

*Freyfogle, Context and Accommodation in Modern Property Law

(1989) 41 Stan. L.Rev. 1529, 1546-1547.

4la

in the practical administration of water distribution

makes such change understandably difficult to accept.

Work, Acting P. J., and Todd, J., concurred.

42a

No. 58706

SUPERIOR COURT

OF THE

STATE OF CALIFORNIA

FOR THE COUNTY OF IMPERIAL

IMPERIAL IRRIGATION DISTRICT,

Plaintiff and Petitioner,

Vv.

STATE WATER RESOURCES CONTROL BOARD,

Defendant and Respondent.

JUDGMENT AND ORDER

JOHN K. VAN DE KAMP,

Attorney General of the

State of California

R. H. CONNETT

Assistant Attorney General

M. ANNE JENNINGS

Deputy Attorney General

350 McAllister St., Room 6000

San Francisco, CA 94102

Telephone: (415) 557-0818

Attorneys for Defendant

and Respondent

Robert D. Zumwalt, Clerk

May 5, 1988

B. Rundle

Deputy

Jennings, Engstrand & Henrickson

May 18, 1988

Ree’d By

43a

This matter came on for hearing before this Court on

February 2 and 3, 1988, after remittitur from the Court of

Appeal for the Fourth District, the Honorable James A.

Malkus, Judge of the Superior Court of San Diego

County, presiding by designation of the Judicial Council.

The hearing was held by stipulation of the parties in

Department 12 of the Superior Court in San Diego.

Jennings, Engstrand & Henrikson by Paul D. Engstrand

and Horton, Knox, Carter & Foote by J. Penn Carter

appeared for petitioner Imperial Irrigation District. At-

torney General John K. Van de Kamp by M. Anne

Jennings, Deputy Attorney General, appeared for respon-

dent State Water Resources Control Board and John

Krautkraemer appeared for intervenor Environmenta!

Defense Fund. Respondent and intervenor having filed a

response to the petition, all parties having submitted

written memoranda and made oral argument, the admin-

istrative record and additional evidence having been re-

ceived and examined by the Court, the cause having been

submitted for decision, and the Court having made,

signed and filed its Statement of Decision.

IT IS HEREBY ORDERED, ADJUDGED and DE-

CREED that:

1. The provisions of article X, section 2 of the Califor-

nia Constitution are applicable to the Imperial Irrigation

District.

2. The State Water Resources Control Board had

authority to conduct an administrative hearing on the

reasonableness of the Imperial Irrigation District’s water

management practices and to make an administrative

determination thereon.

3. The finding of the State Water Resources Control

Board that continued diversions of water by the Imperial

44a

Irrigation District, with the present level of losses and

without a plan to reduce those losses, was a misuse of

water in violation of article X, section 2 is supported by

the weight of the evidence in the administrative record,

applying the Court’s independent judgment to the record.

4. The Board’s order directing the District to repair

defective tailwater structures, to implement a water ac-

counting and monitoring procedure and to submit to the

Board a detailed and comprehensive plan to remedy the

loss of water is reasonable and is supported by the finding

of misuse.

45a

5. The petition for a writ of mandate is denied. The

matter is remanded to the Board for a determination of

new dates for compliance by the District with the Board's

order.

Dated: May 5, 1988

JAMES A. MALKUS

JUDGE OF THE

SUPERIOR COURT

APPROVED AS TO FORM:

for

ENVIRONMENTAL

DEFENSE FUND

for

IMPERIAL IRRIGATION

DISTRICT

46a

No. 58706

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN DIEGO

IMPERIAL IRRIGATION DISTRICT,

Plaintiff and Petitioner,

STATE WATER RESOURCES CONTROL BOARD,

Defendant and Respondent.

STATEMENT OF DECISION

This case is before the Court, by way of remittitur, for

judicial review of “Water Rights Decision 1600” issued by

the State Water Resources Control Board (‘“Board’’) on

June 21, 1984. Review in this court is by way of writ of

mandate, applying the independent judgment test.

These proceedings began when John Elmore, a farmer

with lands bordering the Salton Sea, requested the Cali-

fornia Department of Water Resources (““Department’’)

to investigate several specific ways in which he alleged the

water management and marketing practices of the Impe-

rial Irrigation District (“IID” or “the District”) resulted

in a misuse of water. Elmore’s primary concern was that

excess irrigation return flow from lands within IID, to-

gether with water from spills and seepage from IID’s

canal system, had raised the level of the Salton Sea,

flooding Elmore’s lands. Elmore also requested the Board

to hold a hearing on IID’s alleged misuse of water

following the Department’s investigation.

The Department’s investigation, completed in Decem-

ber 1981, coneluded that large amounts of water were

being lost to beneficial consumptive uses as a consequence

47a

of IID’s water management practices. The water losses

were caused by such policies as ordering more water than

could be used by the District's farmers and maintaining

canals excessively full, which resulted in spills of water

from canals, a lack of reservoirs to regulate and store

incoming supplies of water, and the absence of effective

tailwater recovery systems. The Department also con-

cluded that additional water could be saved through

lining of water delivery canals and the adoption of alter-

native irrigation methods. The Department Report esti-

mated that) approximately 438,000 acre-feet could be

consei ved annually.

Evidence presented during a six day hearing before the

Board showed annual water losses of approximately one

million acre feet, well over a third of all water delivered to

IID. Although IID had adopted two water conservation

programs, in 1976 and 1980, and had adopted a resolution

to reduce inflow to the Salton Sea by 100,000 acre-feet of

water a year, the State Board concluded that little had

been done to implement these plans, and the District

needed a comprehensive water conservation plan in order

to promote effective water conservation. The District had

failed to produce such a plan in the two and a half years

since the Department’s initial report.

The Board did not find that IID’s uses of water, in

themselves, were unreasonable. Rather, weighing all the

circumstances, including other potential uses for Colo-

rado River water, the Board found that continued diver-

sions by IID, with the present levels of losses and without a

plan to reduce those losses, was a misuse of water in

violation of Article X, Section 2 of the state Constitution.

The Board ordered IID to implement its announced

policy of monitoring tailwater discharges, to require

water users to repair defective tailwater recovery struc-

48a

tures, and to develop a water accounting and monitoring

procedure to quantify the amount of water actually reach-

ing farmers and the amount lost through tailwater, canal

spills, canal seepage and leaching. The Board did not

require further specific measures, but required the Dis-

trict to submit a detailed and comprehensive plan setting

forth how the District would propose to conserve water

through various potential conservation measures, includ-

ing reducing tailwater and canal spills. constructing regu-

latory reservoirs and lining canals.

In applying the independent judjment test, the trial

court must determine if the weight of the evidence sup-

ports the Board's findings. CCP§ 1094.5(¢c). Weight of

the evidence was held synonymous with preponderance of

the evidence in Chamberlain v. Ventura County Civil Serv.

Comm'n (1977) 69 Cal.App.3d 362, 368. The case of

Ettinger v. Board of Medical Quality Assurance (1982)

135 Cal.App.3d 853, cited by Petitioner for the proposi-

tion that clear and convineing proof of misuse of water is

required to support the Board’s findings, is not applicable

to these facts.

This Court has reviewed the lengthy record herein in

great detail. Applying its independent judgment, the

Court finds that the evidence amply supports the Board’s

finding that the District’s failure to implement additional

water conservation measures is unreasonable and consti-

tutes a misuse of water under Article X, Section 2 of the

California Constitution and Section 100 of the California

Water Code.

While the Court agrees that the primary responsibility

for evaluating and implementing potential water conser-

vation measures for IID lies with the District itself, it is

the Board (along with the Department) which is charged

with the responsibility of preventing the misuse of water.

49a

Water Code § 275. Furthermore, recent decisions have

recognized a “broad’”’, “open-ended”, “expensive” author-

ity on the part of the Board to undertaxe comprehensive

planning and allocation of the State’s water resources.

National Audubon Society v. Superior Court (1983) 33

Cal.3d 419, 449, citing to In re Waters of Long Valley

Creek Stream System (1979) 25 Cal.3d 339, 348-349, 350,

fn. 5, and People v. Shirokow (1980) 26 Cal.3d 301, 309.

Indeed, as the Court stated in United States v. State Water

Resources Control Board (1986) 182 Cal.App.3d 82 at

Page 129, “All water rights, including appropriative, are

subject to the overriding constitutional limitation that

water use must be reasonable....’’ To that end, the

Board is empowered to institute necessary judicial, legis-

lative or administrative proceedings to prevent waste or

unreasonable use... .”’

The Board looked at all the relevant aspects of IID’s

operations and concluded that a continuation of IID’s

present practices, in the face of massive, correctable

losses, substantial property damage from flooding and

other potential uses for the water, constituted a misuse of

water. This Court agrees with that determination.

Water Rights Decision 1600 is a reasonable and bal-

anced directive for achieving compliance with Article X,

Section 2. It is well supported by the finding of misuse. It

should be noted that, except for requiring the District to

repair defective tailwater structures, Decision 1600 itself

requires no specific conservation measures, nor does it

compel IID to sell, transfer, or otherwise convey water to

the Metropolitan Water District or any other party. Deci-

sion 1600 simply requires the District to prepare plans to

remedy its misuse of water, while retaining jurisdiction to

review the adequacy of IID’s plans. This is appropriate.

50a

The writ of mandate is denied, and this matter is

remanded to the State Water Resources Control Board

for determining new dates for compliance by IID with the

Board's order for IID to implement its announced policy

of monitoring tailwater discharges, to require water users

to repair defective tailwater recovery structures and to

develop a water accounting and monitoring procedure to

quantify the amount of water actually reaching farmers

and the amount lost through tailwater, cana! spills, canal

seepage and leaching and for the submission of a detailed

and comprehensive plan setting forth how the District

would propose to conserve water through various poten-

tial measures, including reducing tailwater and canal

spills, constructing regulating reservoirs and lining

canals.

Dated: April 13, 1988

JAMES A. MALKUS

Judge of the Superior Court

5la

No. 58706

IN THE SUPERIOR COURT

THE STATE OF CALIFORNIA

IN AND FOR

THE COUNTY OF IMPERIAL

IMPERIAL IRRIGATION DISTRICT’,

Plaintiff and Petitioner,

VS.

STATE BOARD RESOURCES CONTROL BOARD,

Defendant and Respondent.

J. PENN CARTER

REGINALD L. KNOx, JR.

HORTON, KNOX, CARTER & FOOTE

Attorneys at Law

895 Broadway, Suite 101

El Centro, California 92243

Telephone: (619) 352-2821

PauL D. ENGSTRAND

RICHARD G. OPPER

JENNINGS, ENGSTRAND & HENRIKSON

A Professional Law Corporation

2255 Camino del Rio South

San Diego, California 92108

Telephone: (619) 557-7800

Attorneys for Plaintiff and Petitioner

IMPERIAL IRRIGATION DISTRICT

August 3, 1988

John W. Kennerson, County Clerk

Lisa A. Benavidez, Deputy

52a

NOTICE OF APPEAL

NOTICE IS HEREBY GIVEN THAT plaintiff and

petitioner, Imperial Irrigation District, hereby appeals

from the judgment and order filed herein on May 5, 1988

in favor of defendant and respondent, State Water Re-

sources Control Board, and from the order denying plain-

tiff and petitioner's motion for new trial and motion to

vacate judgment filed herein on July 8, 1988.

Dated: August 3, 1988

HORTON, KNOX, CARTER & FOOTE

and

JENNINGS, ENGSTRAND &

HENRIKSON

A Professional Law Corporation

By J. PENN CARTER

J. Penn Carter, Attorneys for

Plaintiff and Petitioner

53a

ORDER: WR 88-20

COUNTY: Imperial

STATE OF CALIFORNIA

STATE WATER RESOURCES CONTROL BOARD

In the Matter of

WASTE AND UNREASONABLE USE OF WATER

BY IMPERIAL IRRIGATION DISTRICT.

ORDER TO SUBMIT PLAN AND

IMPLEMENTATION SCHEDULE FOR

WATER CONSERVATION MEASURES

5.0

54a

TABLE OF CONTENTS

INTRODUCTION .....ccccccccccvecvccees

BACKGROUND .......-ccceccccrcccscees

Decision 1600 and Related Litigation.....

Subjects Addressed at Hearing on

March 30 and 31, 1988 .........ccccecees

STATUS OF IID WATER

CONSERVATION MEASURES ...........

Ongoing Water Conservation Measures ...

Development of Water Conservation Plan

NEED FOR WATER CONSERVATION ...

Possible Increase in Water Demand

Lee Te Oe ae sé 60 6 4

Metropolitan Water District of Southern

bee ee ee bes eee aves

Coachella Valley Water District....>.....

Effect of IID Water Conservation on

Water Available to Other Areas..........

Summary of Evidence Regarding Need for

Water Made Available Through IID Water

IID’S PRESENT IMPLEMENTATION

PROPOSALS FOR WATER

CONSERVATION PLAN ...........-.-+-:

SOURCES OF FUNDING FOR

INCREASED WATER CONSERVATION ..

Imperial Irrigation District Funding .....

External Sources of Funding for IID

Wate CemGOGUGGe on cc cccccccsccceseces

State and Federal Financia] Assistance

a ti

6.2.2

6.2.3

7.0

7.1

7.2

7.3

8.0

8.1

8.2

8.3

8.4

9.0

55a

Metropolitan Water District...........

Other Sources of Funding.............

ENVIRONMENTAL CONSIDERATIONS...

0 I A

Impacts of Water Conservation in IID....

CEQA Considerations ..................

LEGAL PRINCIPLES APPLICABLE TO

IID WATER CONSERVATION

eo, 0 o's Fo vi Sew ks e cece

Constitutional and Statutory Requirements

to Maximize Beneficial Use of Water .....

Jurisdiction of State Water Resources

ee las na bc evan cs ccc,

Implementation of Water Conservation

Measures Pursuant to Agreement to

Transfer Conserved Water ..............

Implementation of Water Conservation

Measures Pursuant to Physical Solution

ER SR ae en en

I ES oo 5b Fs do's vie cee ce

Ac A ee ee

56a

ORDER: WR 88-20

COUNTY: Imperial

STATE OF CALIFORNIA

STATE WATER RESOURCES CONTROL BOARD

In the Matter of

WASTE AND UNREASONABLE USE OF WATER

BY IMPERIAL IRRIGATION DISTRICT.

ORDER TO SUBMIT PLAN AND

IMPLEMENTATION SCHEDULE

FOR WATER CONSERVATION MEASURES

BY THE BOARD:

10 INTRODUCTION

The State Water Resources Control Board (Board)

having issued Water Right Decision 1600 on June 21,

1984; Decision 1600 having found that the operational

practices of the Imperial Irrigation District (IID or

District) result in a misuse of water in violation of

Article X, Section 2 of the California Constitution and

Section 100 of the California Water Code; the Board

having ordered that IID take specified measures to con-

serve water including the development of a comprehensive

water conservation plan and implementation schedule; the

Board having conducted further hearings on May 5, 1987

and March 30 and 31, 1988 to receive evidence regarding

the status of IID’s water conservation program and plans;

IID and other interested parties having appeared and

57a

presented evidence; the evidence having been duly consid-

ered by the Board; the Board finds as follows:

2.00 BACKGROUND

2.1 Decision 1600 and Related Litigation

The Board’s involvement in evaluating water use and

the potential for water conservation in Imperial Irrigation

District began with the filing of a complaint with the

Board and the Department of Water Resources alleging

waste and unreasonable use of water. Following investiga-

tion of the complaint, and failure to resolve the matter

with IID, the Department of Water Resources referred

the complaint to the Board for hearing. Based on the

record developed at the hearing in September and Decem-

ber of 1983, the Board issued Decision 1600 on June 21,

1984. Decision 1600 reviewed the issues raised at the

hearing concerning the operations of IID, the causes and

quantity of water losses in IID, and the potential for

reducing water losses through implementation of water

conservation measures. The decision acknowledged ef-

forts of IID and many individual farmers to conserve

water, but it found that there were additional practical

water conservation measures available and that the fail-

ure to implement such measures resulted in a misuse of

water in violation of Article X, Section 2 of the California

Water Code. IID was directed to submit evidence regard-

ing tailwater monitoring, to repair or require the repair of

defective tailwater structures, to submit a plan for resum-

ing construction of regulatory reservoirs, to develop an

improved water accounting system and to prepare a

comprehensive water conservation plan specifying a

schedule of implementation and method of financing for

selected water conservation measures.

58a

Following the Board’s denial of a petition for reconsid-

eration, IID filed suit challenging the Board’s jurisdiction

to adjudicate the reasonableness of IID’s water usage

under pre-1914 appropriative rights. The Superior Court

ruled that Decision 1600 had no binding legal effect on

IID. On November 4, 1986, however, the Court of Appeal

upheld the Board’s jurisdiction to adjudicate issues con-

cerning the alleged waste or unreasonable use of water

and to enter orders requiring corrective action where a

misuse of water is determined to exist. (Imperial Irriga-

tion District v. State Water Resources Control Board,

(1986) 186 Cal.App.3d 1160, 231 Cal.Rptr. 283.) The

California Supreme court denied IID’s petions for review

and the case was remanded to Superior Court for deter-

mination of whether the evidentiary record supported

issuance of Decison 1600.

On April 13, 1988, the Superior Court entered a State-

ment of Decision which concluded that the evidence

amply supports the Board’s finding that the failure of IID

to implement additional water conservation measures is

unreasonable and constitutes a misuse of water. The court

also concluded that the Board had looked at all releva-

vant aspects of IID’s operations and declared that Deci-

sion 1600 is a reasonable and balanced directive for

achieving compliance with Article X, Section 2 of the

State Constitution. The court remanded the matter to the

Board for establishing a new schedule for complying with

Decision 1600. IID’s motion for a new trial was denied on

July 8, 1988.

2.2 Subjects Addressed at Hearing on March 30 and 31,

1988

No action was taken to enforce the requirements of

Decision 1600 pending resolution of the litigation con-

59a

cerning the Board’s jurisdiction. A hearing was held on

May 5, 1987 to receive a status report from IID on water

conservation measures. A more extensive hearing was

held on March 30 and 31, 1988 to receive evidence regard-

ing: (1) the status of IID’s 1985 Water Conservation

Plan; (2) additional water conservation studies or pro-

grams which have been initiated or completed since adop-

tion of the 1985 Water Conservation Plan; (3) the

priority in which identified water conservation measures

would be implemented; (4) the economic feasibility and

sources of funding for water conservation measures;

(5) the schedule for implementing particular water con-

servation measures; (6) estimates of other water users’

present and future needs for water which is made availa-

ble as the result of IID water conservation; and (7) the

anticipated effects of water conservation in IID upon

beneficial uses of the Salton Sea.

3.0 STATUS OF IID WATER CONSERVATION

PROGRAM

3.1 Ongoing Water Conservation Measures

Imperial Irrigation District is involved in numerous

water conservation projects. With respect to the repair of

defective tailwater structures required by Decision 1600,

IID notified all farmers within the District to repair

defective tailwater structures or the District would repair

the structures at the farmers’ expense. The District also

maintains an ongoing program of notifying farmers of

faulty tailwater structures which do not allow for accu-

rate water measurement. Testimony from District person-

nel and farmers indicates that the program is effective.

With respect to monitoring tailwater discharges, the

District provided evidence indicating that, for 1987, Dis-

trict personnel monitored 91.7 percent of water deliveries

60a

of one cubie foot per second or greater. Deliveries for

smalier amounts of water are normaily for stockwater or

rural domestic use which seldom have any tailwater. The

Board concludes that the evidence presented substan-

tially complies with the provisions of Decision 1600 di-

recting IID to submit evidence regarding the extent of

tailwater monitoring.

With respect to developing an improved water account-

ing procedure as directed by Decision 1600, the District

introduced evidence regarding its Water Balancing Ac-

counting — Delivery Accounting Program which records

the amount of water actually delivered at the farmers’

headgates rather than simply the amount of water or-

dered as was done previously. The District also has

implemented a program to make measurements of canal

spills, deliveries to lateral headgates, field deliveries,

tailwater discharge, and tile drainage at various locations

throughout the District. A sampling method was utilized

to develop a water balance for the District based on

information from continuous water recorders placed at

various randomly selected locations. Although develop-

ment of the water accounting procedure is not complete,

the evidence indicates that the District is making reason-

able progress toward developing a comprehensive water

accounting program as directed by Decision 1600.

After entry of Decision 1600, IID applied for a low

interest loan to construct an additional regulatory reser-

voir which it estimates will conserve 4,100 acre-feet per

annum of direct operational discharge plus 500 acre-feet

per annum of additional water cqnserved due to opera-

tional flexibility. The reservoir is scheduled to be in

operation in August or September of this year. The

District also has plans for another regulatory reservoir to

be located adjacent to the East Highline Canal. Further

6la

construction of regulatory reservoirs appears to be closely

related to the development and implementation of the

District's overall water conservation plan as discussed

below.

Other ongoing water conservation programs referred to

in the record include continuation of the District’s con-

crete lining of canals, a demonstration tailwater recovery

program, operation of seepage recovery systems along

portions of the East Highline Canal and All-American

Canal, and participation in a cooperative study with the

U.S. Bureau of Reclamation to determine the cost effec-

tiveness of lining the East Highline Canal. The rate of

concrete lining of canals, however, has decreased substan-

tially in recent years due to budget limitations. (IID, 10,

Table 14; T,1,113:22-115:23).’

3.2 Development of Water Conservation Plan

IID presented testimony that its present water conser-

vation plan is composed of a number of studies and

reports developed over the last several years. These docu-

ments include the 1985 Water Conservation Plan and

1985 Supplement, the 1985 Water Requirements and

Availability Study, the 1985 Water Transfer Study, and

the 1986 and 1987 Water Conservation Activities and

Update reports. In addition, IID has prepared an Envi-

ronmental Impact Report on the proposed Water Conser-

vation Program and Initial Water Transfer Study as well

‘Citations to exhibits in the record are indicated by the abbrevia-

tion of the party submitting the exhibit, the exhibit number, and the

number of the page, table or figure within the exhibit. Citations to the

hearing transcript are indicated by a “T” followed by the volume

number, the beginning page and line number and the ending page and

line number.

as a very recent Water Conservation Implementation

Plan.

The 1985 Water Conservation Plan diseusses District

operations and on-going IID water conservation pro-

grams. The plan also specifies a number of long-term

water conservation goals including additional concrete

lining of District canals, replacing canals and drains with

pipelines in cities and towns, construction of an 8,000

acre-foot reservoir near the East Highline Canal, con-

struction of up to ten regulatory reservoirs of 200 to 500

acre-feet each, installation of automated remote system

control and data acquisition devices at numerous loca-

tions, construction of spill collector systems and seepage

recovery systems, use of computerized water delivery

scheduling, collection and distribution of weather and soil

data for farmers’ use in scheduling water orders, coopera-

tion in providing information on irrigation and tailwater

recovery systems to farmers, continuation of on-farm

improvements, implementation of irrigation management

programs by farmers and installation of tailwater recov-

ery systems. The long-term goals outlined in the plan are

subject to funding availability. Consequently, no firm

schedule is established for implementation of most speci-

fied conservation measures.

The 1986 and 1987 Water Conservation Activities and

Updates reports provide information on changes in condi-

tions and modifications to the plan made in each year. The

Water Requirements and Availability Study was under-

taken to identify the District’s potential water supply

needs and to determine the amount of water that could be

conserved and made available for other uses.

The 1985 Water Transfer Study prepared for IID by

Parsons Water Resources, Inc. examined a number of

factors to determine the most likely candidates for a

63a

water transfer arrangement with IID. Factors considered

include current and projected water supply and demands,

feasibiiity of a water transfer, and benefits to both the

transferor and the transferee. The study identified Metro-

politan Water District, San Diego County Water Author-

ity, and Kern County Water Agency as the three most

likely candidates for entering into a water transfer ar-

rangement. Of those three agencies, Metropolitan Water

District (MWD) was determined to be the “most suitable

candidate” because it has the necessary facilities and

conveyance capacity, its receipt of additional water would

benefit a number of water agencies in the south coastal

region of the State, it has an existing contract for Colo-

rado River water and it is familiar with the water contract

administration policies of the U.S. Department of the

Interior. (IID, 8, p. ES-5). The Water Transfer Study

eoncluded that IID should negotiate an initial water

transfer agreement with MWD that would make addi-

tional water available for diversion into the Colorado

Aqueduct System. The initial transfer would involve

water made available as a result of previously imple-

mented conservation measures. The study recommends

that additional water transfer agreements with MWD

should follow as further water conservation occurs. In the

event a water transfer cannot be negotiated within a

reasonable time, the study recommends that a transfer to

the San Diego Water Authority be negotiated.

Based on the information from the various water con-

servation documents prepared over the last few years,

IID recently developed a Water Conservation Implemen-

tation Plan which is discussed in Section 5 below. The

Environmental Impact Report for the proposed IID water

conservation program is discussed in Section 7.

64a

4.0 NEED FOR WATER CONSERVATION

4.1 Possible Increase in Water Demand Within IID

Implementation of water conservation measures in IID

could make a substantial amount of water available for

other uses, either within the District or el. ewhere. Some

of the water made available through water conservation

may be required for increased leaching in IID to prevent

salt build-up in the soil. Other factors which may increase

IID’s demand for water include the possibility of irrigat-

ing additional acreage, increased use of double cropping,

and increased municipal demands. Imperial Irrigation

District estimates that implementation of its proposed

water conservation plan would result in conservation of

367,900 acre-feet per annum, in addition to water savings

already achieved. IID proposes to transfer 250,000 acre-

feet per year, holding the remainder in reserve to cover

future water needs in the Imperial Valley. (T,1,56:10-

56:17).

4.2. Metropolitan Water District of Southern California

As noted in Section 3.2 IID’s 1985 Water Transfer

Study concluded that IID should negotiate a water trans-

fer agreement with MWD. The projected water demands

for MWD and the basis for those projections are ex-

plained in MWD Exhibit 12. As the result of wet condi-

tions on the Colorado River since 1983, MWD has been

able to divert close to the 1.3 million acre-foot capacity of

its Colorado River aqueduct in each of the last five years.

(T,II, 339:17-19). Due to the development of the Central

Arizona Project and other factors, however, the quantity

of Colorado River water available for diversion by MWD

on a dependable basis will be restricted to the quantity

available under its fourth priority right to 550,000 acre-

feet per annum. This quantity is reduced further by

65a

approximately 30,000 acre-feet per annum due to current

levels of use by other holders of present perfected rights.

There is a possibility of additional reduct ns in the

quantity of water available to MWD due to increased use

by Indian tribes. (MWD, 2, p. 22). The Central Arizona

Project began deliveries in 1985 and is expected to utilize

its full apportionment in about 1992. (T,I1,340:11-340:16).

Witheut the development of additional supplies the re-

cord indicates that MWD faces a potential systemwide

shortfall during dry periods of 560,000 acre-feet per

annum by the year 2000, increasing to 980,000 acre-feet

per annum by 2010. (MWD, 12, pp. 1, 18; MWD, 15, p. 2).

4.3. Coachella Valley Water District

Imperial Irrigation District, Coachella Valley Water

District (CVWD), Palo Verde Irrigation District and the

Yuma Project collectively hold rights to divert 3.85 mil-

lion acre-feet per annum from the Colorado River. CVWD

introduced evidence of water usage by the four agencies

showing that in 5 of the last 28 years, the 3.85 million

acre-feet per annum limitation was exceeded. If excess

Colorado River water had not been available, CVWD

would have faced shortages ranging from 8,000 to 232,000

acre-feet. (T,I1,439:17-440:8; CVWD, 3). The estimated

water shortages to CVWD are based upon the assumption

that the water savings resulting from lining 49 miles of

the Coachella Canal were in effect. (T,I1,439:24-440:1).

Based upon the evidence of past water usage, CVWD

contends that additional water conservation in IID is

necessary to ensure that CVWD water demands can be

met within the 3.85 million acre-feet apportionment of the

four agricultural agencies. However, CVWD Exhibit 3

shows that since 1982, annuai Colorado River water use of

the four agencies has been below their 3.85 million acre-

66a

feet entitlement. No evidence was presented explaining

the reasons for the reduction in water use in recent years

or showing the extent to which additional water conserva-

tion measures will be required in order to stay within the

3.85 million acre-feet entitlement.

4.4 Effect of IID Water Conservation on Water Available

to Other Areas

Imperial Irrigation District initiated negotiations with

Metropolitan Water District in March 1984 to develop a

water conservation funding program. (MWD, 8) As noted

above, the 1985 Water Transfer Study prepared for IID

also identified Metropolitan Water District, along with

San Diego County Water Authority and Kern County

Water Agency as the three most likely candidates to enter

into a water transfer agreement with IID. Neither San

Diego County Water Authority nor Kern County Water

Agency appeared at the Board hearing nor was any

evidence presented to establish that either agency is

seeking to negotiate a water transfer with IID. As a

member agency of MWD, however, the San Diego County

Water Authority would benefit by a water transfer ar-

rangement which increases the overall reliable water sup-

ply available to MWD.

Although no evidence was presented of other major

water users seeking to acquire water from IID, the State

Water Contractors produced testimony showing how a

transfer of water to MWD could increase the supplies

available to other State Water Project (SWP) water

users by reducing the demands of MWD for water from

the SWP. (T,I,11:24-22:3) The State Water Contractors

is a nonprofit corporation representing 28 of the 30 public

agencies that purchase water from the SWP which to-

gether hold a contractual entitlement to 99.3 percent of

67a

SWP water delivery obligations. (T,1,10:21-11:1). The

agencies represented by the State Water Contractors are

located throughout the State ranging from Butte and

Plumas Counties in the north to parts of San Diego,

Riverside and Imperial Counties in the south. (SWC 3,

Figure 1). Approximately 17 million people get at least a

supplemental supply of water from the SWP. (T,I,11:12-

11:13).

Utilizing existing facilities, the SWP can deliver a

dependable water supply of 2.2 million aere-feet per

annum to the State Water Contractors in 1990 declining

to 2.1 million acre-feet per annum by the year 2000 as

water use in Northern California increases. (MWD, 2,

p. 23). The State Water Contractors demands in the

current year are about 2.6 million acre-feet per annum.

(T,1,13:13-15:15). If there were no surplus water available

to MWD from the Colorado River, however, the State

Water Contractors’ demand for SWP water would in-

crease to about 3.1 million acre-feet per annum, a demand

which could not be met about 50 percent of the time with

existing facilities. (T,I,13:4-13:24).

State Water Contractors’ Exhibit 2 projects total SWP

demand of about 3.6 million acre-feet per annum in the

year 2010. With existing facilities capable of delivering a

dependable supply of 2.1 million acre-feet per annum, a

demand of 3.6 million acre-feet per annum would result in

shortages to the State Water Contractors of about 1.5

million acre-feet per annum in dry years. The Department

of Water Resources Bulletin 160-87 projects a SWP

demand of 3.6 million acre-feet per annum in the year

2010 assuming that 250,000 acre-feet of water conserved

in the Colorado River region becomes available for use in

the South Coast region. (Staff 1, p. 43).

68a

4.5 Summary of Evidence Regarding Need for Water

Made Available Through IID Water Conservation

The Colorado River Aqueduct will soon have substan-

tial excess capacity due to the reduced quantity of Colo-

rado River water available to California water users. The

fact that IID and MWD have been actively negotiating to

arrange a water transfer provides strong evidence that

there is a demand for water which could be made availa-

ble through IID water conservation. To the extent that

MWD could obtain a portion of the water made available

by IID water conservation, its demand for water from the

State Water Project would be reduced, thereby increasing

supplies available to other SWP water users and reducing

pressure for development of additional water supplies.

The evidence presented clearly establishes that Califor-

nia water users have a need for substantial additonal

water supplies and that additional water conservation in

IID presents a feasible means of meeting a portion of that

demand. The implementation plan set forth in Scenario

No. 1 of IID Exhibit 25 proposes a series of water

conservation measures which would enable IID to make

250,000 acre-feet per annum available for use by another

water user 1] years after the plan is implemented. In

making projections of future statewide water demand in

Bulletin 160-87, the Department of Water Resources

assumed that a transfer of 250,000 acre-feet per annum of

water to other water users would oecur due to IID water

conservation. (Staff, 1, p. 41). The evidence presented at

the Board hearing confirms that a transfer of this quan-

tity of water would assist in meeting the identified future

demands of California water users.

69a

5.0 IID’S PRESENT IMPLEMENTATION PROPOS.-

ALS FOR WATER CONSERVATION PLAN

IID has developed an implementation plan which

presents a strategy for implementing those elements of

its 1985 conservation plan which the District considers

could be efficiently executed in a cost-effective manner.

The implementation plan covers all proposed water con-

servation projects that are planned to be accomplished

over the 35-year period beginning in 1989. The projects

include those that are part of the District’s system and

on-farm projects to be implemented by the farmers at the

District's expense. The District intends to review the plan

periodically and modify it to reflect new technology devel-

oped in implementing the various conservation proposals.

The major elements of the implementation plan are

described in IID Exhibit 25. The plan includes the follow-

ing elements:

(1) Canal lining.

(2) Construction of regulatory reservoirs.

(3) Installation of nonleak gates on canals.

(4) Recovery of operational discharge (canal spills).

(5) Automation of the water delivery system.

(6) A study of water level fluctuation in lateral canals

to assist in developing system automation

strategies.

(7) Farmer incentive programs to encourage water

conservation.

(8) Tailwater monitoring and excess tailwater

assessments.

(9) Program planning and design work.

70a

(10) Irrigation water management program to improve

on-farm practices.

(11) Installation of tailwater pumpbacks.

(12) Farmer incentive payments to encourage installa-

tion and use of tailwater pumpbacks.

(13) Salinity production loss payments to farmers using

tailwater pumpbacks.

(14) Land leveling to improve irrigation efficiency and

reduce tailwater.

(15) Reimbursement of hydropower revenues lost due to

reduced water diversions.

(16) Establishment of a salinity control fund to finance

yet to be identified salinity control measures.

(17) Environmental mitigation studies and programs.

(18) Construction of evaporation ponds to maintain

Salton Sea salinity at an acceptable level.

(19) Legal contingency fund.

Implementation of the program elements described

above would result in a comprehensive water conservation

program and improvement in District operations. I1D

estimates that implementation of proposed programs with

each of the elements identified above could occur over the

next 35 years and would result in conserving 367,900

acre-feet per annum upon completion of the program.

(IID, 25, Appendix A, Scenario No. 1).

Based on information from the Parsons Water Re-

sources, Inec., report, however, it appears that the esti-

mated quantity of water to be conserved through use of

on-farm pumpback systems should be carefully reviewed.

It appears that the conservation potential of the tailwater

Tla

pumpback systems may have been overestimated if such

systems are to be implemented in conjunction with other

water conservation measures which would assist in reduc-

ing tailwater. The Board also notes that items 12 and 13

are proposed as incentives or compensation for farmers

participating in installation and use of tailwater recovery

systems. Some farmers, however, have voluntarily in-

stalled tailwater pumpbacks at their own expense. There-

fore, it is unclear from the record whether items 12 and 13

would be necessary for widespread use of tailwater recov-

ery systems. If the incentive and compensation programs

of items 12 and 13 are necessary, then the cost of such

programs should be considered together with the

tailwater pumpback installation cost to provide an accu-

rate indication of the total cost of tailwater recovery

systems.

It should also be recognized that the salinity control

fund as identified in item 16 above may be required to

dea! with salt build-up in the soil and expected increases

in Colorado River salinity whether or not an expanded

water conservation program is implemented.” To the ex-

tent that a salinity control program is needed even in the

absence of further water conservation measures, the cost

of such a program should not be considered as part of the

cost of water conservation.

Potential sources of funding for an expanded water

conservation program are discussed in Section 6 below. In

order to secure adequate funds to implement a proposed

conservation program, it will be important for IID to

calculate as closely as possible the quantity of water

“In addition to salinity control measures which IID may imple-

ment, the problem of high salinity levels in the lower Colorado River

has been the subject of a basin-wide program to control and reduce

sources of salinity in upstream areas.

72a

expected to be saved and the costs which will be incurred

in implementing the program. If IID were to implement

all 19 elements of its present implementation plan as set

forth in Exhibit 25, the District estimates that upon

completion of the program it could conserve 367,900 acre-

feet per annum at a total cost over 35 years of

$3,350,571,578. A second seenario set forth in IID Ex-

hibit 25 ealls for full implementation of some of the

programs discussed above, partial implementation of

others, and no implementation of the remaining elements.

This scenario was analyzed for the same 35-year period at

a total cost of $729,013,416. Upon completion, the pro-

gram identified in the second scenario is estimated to

conserve 104,823 acre-feet of water per annum. (IID, 25,

Appendix A, Scenario 2).

The documents described in Section 3.2 above provide

an extensive amount of valuable information for use in

developing a comprehensive water conservation plan.

They set forth what has been termed a “menu” from

which to select the desired water conservation measures.

Based upon the selections from the menu, IID Exhibit 25

sets forth what the District considers to be an “ideal

program” which ineludes all feasible water conservation

projects identified in previous studies. (T,I,49:7-49:24).

The inability of the District to provide or secure adequate

funding for its proposed water conservation program,

however, has delayed widespread implementation of spec-

ified measures.

6.0 SOURCES OF FUNDING FOR INCREASED

WATER CONSERVATION

6.1 Imperial Irrigation District Funding

Funding for IID water conservation measures imple-

mented to date has come primarily from revenues gener-

FP OAS alae

73a

ated by District water sales. (IID, 3, pp. ES,9, V1.8). The

1985 IID Water Conservation Plan states that future

expenditures on water conservation will be at the maxi-

mum level commensurate with funding capabilities, in-

eluding revenues derived from sales of water. (IID, 3,

pp. VI.9 and VI.10). Other sources of funding which IID

may consider in the future include loans, bond sales, and

increased rates or assessments. (IID, 3, p. VI.9).

There was little evidence introduced on the financial

feasibility of IID funding a substantially expanded con-

servation program in the absence of external funding.

Currently, IID assesses a $1.00 } r acre-foot charge on

water deliveries to finance water conservation measures.

(T,1,100:12-24). Between 1980 and 1986, the portion of

water charges allocated to conservation was $1.75 per

acre-foot, but it declined to $1.00 per acre-foot in 1987

due to District budget considerations. (T,I,100:20-

101:10). Evidence was presented indicating that IID

spends 10 percent of its water budget on water conserva-

tion. (IID, 31, p. 11; T,1,58:10-12).

Although no detailed information was requested or

offered regarding the economic condition of agriculture in

the Imperial Valley, there were a number of general

statements presented stressing that the farmers in IID

are experiencing economic hardship. In addition, the

Water Conservation Advisory Board presented extensive

testimony on the unique problems facing farmers in IID

and the fact that their real water costs substantially

exceed the $10/acre-foot charged by the District.

(T,I,247:9-25; T,I,258:13-259:17). The position of the Dis-

trict and the farmers is that the farmers cannot afford

substantially higher water rates to underwrite water con-

servation measures. (T,I,482:9-483:13, T,I,222:17-21;

T,1I,224:18-225:2).

T4a

Information in the 1985 Water Conservation Plan

shows that the IID 1985 budget was composed of total

expenditures of nearly $104 million, approximately $23

million for water operations and $81 million for power.

Total estimated revenue was “slightly over $105 million”,

of which approximately $23.4 million was from Water

Department operations. Thus, over 75 percent of IID

revenue and expenditures are tied to sale and production

of electrical energy. (IID, 3, pp. 11.20, 11.21). The possi-

bility of funding water conservation measures with reve-

nues generated by power sales was not addressed in'the

evidence presented. If a different method of funding

additional water conservation in IID is not established

and implemented in the near future, the possibility of

funding certain conservation measures with revenue from

electrical power sales should be investigated.

6.2 External Sources of Funding for IID Water

Conservation

Several existing and potential external sources of fund-

ing for water conservation measures within IID were

identified at the hearing. These sources are discussed

below.

6.2.1 State and Federal Financial Assistance

IID has pursued a variety of state and federal pro-

grams to provide funding for water conservation mea-

sures and studies. The USBR has assisted with an

irrigation scheduling program which, since 1981, has

involved 52,423 acres and monitoring of over 7,000 irriga-

tions. (IID, 31, pp. 4, 5; IID, 15). IID also cooperated

with the USBR’s preparation of a lengthy report entitled

“Water Conservation Opportunities, Imperial Irrigation

District, Special Report’, July 1984. (IID, 26). State

funding was obtained through the Clean Water Bond Law

<e eee ng

ee el

T5a

of 1984 for construction of the Trifolium Reservoir and

nearby canal lining. (T,1,45:8-10). In addition, IID has

applied to DWR for low interest loans for severa! other

water conservation projects. (T,1,45:10-15). IID also has

applied for a loan authorized by the Water Conservation

and Water Quality Bond Law of 1986 to fund a feasibility

study of large evaporation ponds as a means of limiting

the increase in Salton Sea salinity levels. (T,1,46:18-47:2).

These and a number of other programs and studies

identified at the hearing demonstrate that IID has uti-

lized state and federal funding and assistance where

available. There was no evidence introduced, however, of

any state or federal programs which could provide suffi-

cient funding to implement comprehensive water conser-

vation programs of the type proposed in IID’s water

conservation plan and related documents. (IID, Exhibits

3, 4, 5, 12, and 25).

6.2.2 Metropolitan Water District

The 1985 Water Transfer Study by Parsons Water

Resources identifies MWD as the most likely candidate

for a program involving the transfer of water in exchange

for water conservation improvements. (IID, 8, p. ES-5).

MWD presented written and oral testimony that it would

be willing to pay “all reasonable costs” of implementing

water conservation measures in IID in exchange for use

of the water made available through such conservation.

(MWD, 15, pp. 1 and 2; T,11,349:25-353:4).

In July of 1985, the negotiating teams from IID and

MWD reached a memorandum of understanding which

envisioned an initial transfer of 100,000 afa for use in

MWD for a period of 35 years in exchange for MWD

paying $10 million per year into an IID water conserva-

tion fund for a period of 38 years. Payments to the

conservation fund would begin three years before the

76a

initial transfer of water, resulting in an average payment

of $109 for each acre-foot of water transferred.

(T,11,286:17-293:3; MWD, 9a). Following the rejection by

the IID Board of Directors of the memorandum of under-

standing, the IID/MWD negotiations have continued, but

no agreement has been reached. Both districts submitted

evidence indicating that the primary obstacle which has .

prevented a water transfer agreement is disagreement

over the costs of implementing an expanded water conser-

vation program. (IID, 31, p. 14; MWD, 15, p. 2). Exhibits

and testimony presented at the hearing illustrate the

differences in the two districts’ views of the reasonable

costs of implementing a water conservation program. IID

Exhibit 25 sets forth a scenario for transferring 250,000

acre-feet per annum to MWD at a cost per acre-foot of

$288.60. (IID, 25, Appendix A, Scenario 1). As an alter-

native, IID proposes a transfer of 100,000 acre-feet per

annum at a cost per acre-foot of $175. (IID, 25, Appen-

dix A, Seenario 2).

Based on information from the 1985 Water Require-

ments and Availability Study (IID, 6), MWD Exhibit 11

sets forth a proposed water conservation program of

114,000 acre-feet per annum at a cost per acre-foot of

$64.00. (MWD 11, Figures 1 and 2; T,I1,311:1-312:25).

MWD also proposed an alternative set of water conserva-

tion measures intended to save 267,000 acre-feet per

annum at a cost per acre-foot of $78. (MWD, 11, Figures

3 and 4; T,II,311:1-312:25).

The substantial differences in cost estimates of IID and

MWD are due to several factors. First, IID’s position is

that if IID assumes the risk of providing an assured

supply to MWD, then MWD should pay the entire costs of

the conservation program rather than just a percentage of

the costs based on the amount of water transferred.

77a

(T,11,515:5-13). MWD responds that it is not equitable

for it to pay the entire cost of a program estimated to

conserve 367,900 acre-feet per annum if MWD would

receive a maximum guaranteed amount of 250,000 acre-

feet per annum.

A second difference between the IID and MWD water

conservation cost estimates is due to differences in the

specific conservation measures proposed by each district.

MWD proposes a program which would implement the

most cost-effective measures whereas IID’s Exhibit 25

sets forth what IID considers to be an “ideal program”

which ineludes all feasible water conservation projects

identified in previous studies. (T,I,49:7-24). MWD rejects

some of the proposals identified in Scenario 1 of IID

Exhibit 25 on the basis of excessive costs. IID responds

that is is important that the program be implemented

systematically and that effective implementation of some

of the more cost-effective projects would not be feasible

without also implementing certain of the more expensive

projects. Focusing on the more cost-effective projects

identified by MWD would result in reducing the unit cost

of each acre-foot of water conserved, but it would also

reduce the overall amount of water conservation.”

‘It should be noted that 51,000 acre-feet per annum of the differ-

ence between the water savings projected for IID’s 367,900 acre-feet

per annum program and MWD's 267,000 acre-feet per annum pro-

gram is attributable to the projected water savings from lining the

All-American Canali between Pilot Knob and Drop 1. Both districts

agree that such a conservation measure should be undertaken. IID

proposes that the project be included in its overall water conservation

program, with construction beginning 10 years after program imple-

mentation begins. (IID, 25, Appendix A, Scenario 2). MWD, on the

other hand, supports federal legislation which would authorize lining

of the All-American Canal frem Pilot Knob to Drop 4 by any of the

existing California agencies receiving water deliveries from the Colo-

78a

A third major area of disagreement between the cost

estimates of IID and MWD involves indirect costs such

as environmental mitigation measures, potential litigation

expenses, and reduction in hydropower generation. The

programs proposed in Scenario 2 of IID Exhibit 25

include allowances for numerous identified indirect costs

of an expanded water conservation program, including

environmental mitigation, litigation contingencies, hydro-

power replacement, farmer incentives, and evaporation

ponds to maintain the salinity of the Salton Sea at a

viable level for survival of the fishery. (IID, 25, Appendix

A, Seenario No. 2). In contrast, the costs shown for the

program described in MWD Exhibit 12 include capital

costs and operations and maintenance expenses but do

not include a separate allocation of expense for each of

several indirect costs identified in the IID proposal. This

is apparently due to the contention that some of the

indirect costs included in the IID proposal are unrelated

or only marginally related to water conservation. (MWD,

14, p. 8).

A fourth difference in the cost estimates of the two

districts is due to the completion of additional studies.

The cost estimates set forth in MWD Exhibit 11 are based

upon the estimates of Parsons Water Resources, Inc.

which were prepared for IID in 1985. (MWD, 11, p. 1).

The cost estimates for the proposals described in IID

Exhibit 25 reflect additional studies by IID and recent

changes which have reduced the operations and mainte-

nance expenses required for the present system.

(T,11,509:5-511:13).

rado River. (MWD, 13, p. 7). Thus, MWD is interested in obtaining

additional water due to lining the All-American Canal, but it appears

that MWD would prefer to undetake that project independently from

any water transfer agreement with IID.

———_—_aaaaaaaae

79a

The large differences in the IID and MWD cost esti-

mates for a water conservation program are due to the

factors identified above and other factors identified in the

testimony and exhibits. Due to the parties’ inability to

negotiate a mutually acceptable agreement to date, MWD

requests that the Board select specific water conservation

measures to be implemented, formulate financing for the

selected measures, establish a schedule for complying

with requirements of the California Environmental Qual-

ity Act and National Environmental Policy Act, and

establish a schedule for implementing selected measures.

(MWD, 15, p. 5). If the Board or a court were to attempt

to formulate the details of an IID water conservation

program as suggested by MWD, detailed analysis of the

economic costs of such a program would be required.

Although the differences in the conflicting cost estimates

could be resolved by the Board or a court in appropriate

circumstances, resolution of that issue is beyond the

scope of this order.

6.2.3 Other Sources of Funding

Another source of funding for additional water conser-

vation by IID is payment received from parties located

near IID who wish to obtain a supply of water from the

District. IID recently completed a contract with IT Cor-

poration in which IID agreed to supply 100 acre-feet per

annum for $250 per acre-foot. IID reports that it has been

approached by two other potential water users for similar

contracts to supply 250 and 5,000 acre-feet per annum,

respectively. (IID, 31, p. 11). With the exception of the

IID/MWD negotiations, however, there was no evidence

presented of any potential agreements to supply water to

water users outside IID’s boundaries which would pro-

vide sufficient funding for all or a major portion of the

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various water conservation measures proposed in IID Ex-

hibits 3, 4, 5, 12, and 28.

7.0 ENVIRONMENTAL CONSIDERATIONS

7.1 Salton Sea

The Salton Sea Basin is a low-lying, rather flat desert

basin largely surrounded by moutains. It includes the

Coachella Valley and the Imperial Valley, which are

separated by the Salton Sea, and part of the Mexicali

Valley south of the Mexican border. Elevations in the

basin vary from about 2,000 feet at the northwest end of

the upper Coachella Valley, to a low of 278 feet below sea

level at the bottom of the Salton Sea. (Staff, 12, from

1983 SWRCB Hearing, p. 9). From time to time as the

Colorado River meandered back and forth across its

delta, its entire flow entered the Salton Basin creating a

body of water about 117 miles long and 30 miles wide.

This ancient body of water was called Lake Cahuilla and

appears to have evaporated away for the last time about

500 years ago. (Staff, 12, from 1983 SWRCB Hearing,

p. 10).

The modern day Salton Sea was formed by the acciden-

tal and uncontrolled diversion of Colorado River flood

flows during 1905 to 1907. (Staff, 12, from 1983 SWRCB

Hearing, p. iii). The Salton Sea is sustained primarily by

agricultural drainage water and, to a lesser extent, by

return flows from domestic water use. Minor amounts of

rainfall and groundwater also enter the Salton Sea.

(Staff, 12, from 1983 SWRCB Hearing, p. 12). The

elevation of the Salton Sea has fluctuated from a maxi-

mum of 196 feet below sea level in 1907 to as low as

250 feet below sea level in 1920. Agricultural expansion

and the resulting increase in drainage water have caused

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the sea to rise to its eurrent level of approximately

227 feet below sea level. (IID, 12, Attachment 15).

The historic record of the Salton Sea shows a gradual

increase in the concentration of dissolved salts. Since the

Salton Sea is in a closed basin having no outlet, salinity is

a function of the degree to which inflow balances evapora-

tion. Although salinity levels have fluctuated slightly, the

historie trend shows an increase in salinity. In January of

1986, the salinity concentration in the Salton Sea was

approximately 39,300 mg/1. (IID, 2, p. 3-8). As explained

below, the Environmental Impact Report for the proposed

water conservation program recognizes that one conse-

quence of reduced inflow to the Salton Sea will be a more

rapid rate of increase in the salinity.

7.2 Impacts of Water Conservation in IID

IID prepared an Environmental! Impact Report (EIR)

for the proposed water conservation program which iden-

tified several adverse effects of implementing the pro-

gram. With respect to the Salton Sea, the EIR recognizes

that a reduction in inflow of agricultural return flow will

result in a reduced elevation of the Salton Sea and an

accelerated increase in salinity. At some point, increasing

salinity levels will interfere with the survival of the

fishery. (Staff 12, from 1983 SWRCB hearing, p. 16).

Implementation of additional water conservation mea-

sures will also result in a reduction of existing wetland

habitat along the Salton Sea shoreline. The EIR states

that the reduction in habitat could cause significant dam-

age to terrestrial wildlife, especially the Yuma Clapper

Rail, a federally designated endangered species and Cali-

fornia designated rare avian species. (IID, 2, p. 4-23).

Recreational activities at the Salton Sea would also be

adversely affected by an accelerated increase in salinity

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expected to occur due to water conservation. The 1986

Draft EIR estimated the total recreational activity at the

Salton Sea to be 750,000 recreational use days annually.

This includes 400,000 days related to fishing, 150,000

days related to hunting, and 200,000 days of other recrea-

tional uses. With or without implementation of additional

water conservation measures, the EIR assumed that con-

tinued deterioration of the Salton Sea due to increasing

salinity will result in the loss of all fishing activity and

one-half of the other recreational activity, or a total loss

of 575,000 recreation days annually. (IID, 2, p. 4-27).

Impacts to recreational use of the area depend to a

large extent on when the fishery would be severely im-

pacted. For purposes of the EIR, it was assumed that a

salinity level of 45,000 mg/1 is the point at which most

fishery activity would be severely reduced. This salinity

level would be reached three years sooner with the imple-

mentation of water conservation measures proposed in

IID’s 1985 plan. (IID, 2, p. 4-27).

Additional water conservation in IID will significantly

reduce flows in the Alamo River, the New River, and

drains flowing directly to the Salton Sea. The reduction in

inflow to both rivers will result in an increase in salinity

and pollutant concentrations which will impact the

aquatic and terrestrial biota. (IID, 2, pp. 4-22 and 4-23).

The most significant beneficial impacts which would

result from an expanded water conservation program are

the availability of conserved water for other uses, the

reduced demand on other sources of water, and the

economic stimulus provided to the local economy through

inereased construction activity. The extent of both such

benefits depends upon the seope of the conservation

program and the rate of implementation. For purposes of

the EIR, it was assumed that a conservation program

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would entail construction expenditures of $300 million

and annual operation and maintenance expenses of $20

million. (IID, 2, p. 1-4). Other beneficial impacts of the

program identified in the EIR inelude lower farm produc-

tion costs and reduced penalty payments to landowners

experiencing flooding due to the existing high water level

of the Salton Sea. Offset against the economic stimulus

was a projected $13.5 million loss in regional income due

to accelerated loss of recreation and $10.4 million in

“social costs” representing the value of lost recreational

enjoyment, reduced property values and related property

taxes. It is reasonable to assume that both the adverse

and beneficial effects of water conservation in IID will

vary depending upon the specific water conservation mea-

sures involved and the quantity of water conserved.

7.3. CEQA Considerations

In April of 1986 the Imperial Irrigation District circu-

lated a draft EIR through the State Clearinghouse

(SCH 86012903) for the District's proposed Water Con-

servation Program and Initial Water Transfer. On

June 18, 1986 the State Board commented on the draft

EIR, and in October of 1986 IID released the final EIR.

On December 2, 1986 IID approved the Water Conserva-

tion Program and the Initial Water Transfer, and filed

Notices of Determination with the County Clerks of

Imperial and Riverside Counties and the State Secretary

for Resources. The EIR addresses the environmental

impacts of an expanded water conservation program in

IID, but the discussion of environmental mitigation mea-

sures is limited.

The Notice of Determination for the proposed Water

Conservation Program acknowledged that the plan would

have significant effects on the environment and reports

Sda

that findings of overriding considerations were adopted

by IID’s Board. (IID, 1b and 1c). The Imperial irrigation

District’s findings were based on the premise that specific

economic, social, and other considerations made infeasi-

ble the project alternatives identified in the final EIR.

Entry of a finding of overriding considerations is autho-

rized by Public Resources Code Section 21081 which

specifies the circumstances under which a public agency

can approve or carry out a project which will significantly

impact the environment.

Significant environmental impacts identified in the EIR

include the following: (1) lower elevation and higher

salinity of the Salton Sea resulting from reduced inflows

(IID, la, p. 2); (2) inereased salinity and decreased flow

of the New and Alamo Rivers (IID, la, p. 8); (3) in-

creased pollutant concentrations in the New River at the

outlet by as much as twenty percent, and in the Alamo

River by as much as fifty percent at some locations,

assuming present pollutant loads (IID, la, p. 11); (4) in-

creased uptake of pollutants into the terrestrial food

chain through the New and Alamo Rivers wet-

lands/riparian habitats (IID, la, p. 20); (5) reduction of

migratory bird use areas within Imperial and Riverside

Counties which are part of the Pacific Flyway (IID, 1a,

p. 24); (6) decreased use of the Salton Sea aquatic and

riparian habitats by terrestrial biota (IID, la, p. 31);

(7) accelerated loss of biota and fishery in the Salton Sea,

including the desert pupfish (endangered species) (IID,

la, p. 37); (8) aecelerated loss of recreation value of the

Salton Sea (IID, la, p. 46); and (9) accelerated loss in

resort and property values near the Salton Sea (IID, la,

p. 52).

The EIR discusses mitigation measures for these envi-

ronmental impacts in general terms but generally does

‘an ——

85a

not identify specific mitigation measures available to

rectify adverse impacts to the environment.’ The lack of

detailed discussion of mitigation measures may be par-

tially due to the fact that the District has not yet deter-

mined which particular water conservation measures

should be pursued or what the schedule for implementa-

tion should be.

In view of the very general nature of the water conser-

vation program approved by the District in 1986, the EIR

certified in that year should be considered a Program

EIR which provides a general assessment of the overall

environmental effects of increasing water conservation

efforts in IID. Prior to the approval of a specific water

conservation program by IID, either a subsequent EIR or

a supplement to the existing EIR may be required in

accordance with the criteria specified in the State CEQA

Guidelines. (CCR, Title 14, Sections 15162 and 15163).

Reasons for requiring a subsequent EIR or an EIR

supplement include substantial changes in the nature of

the proposed project, changes in the circumstances under

which it is to be undertaken or the availability of new

information of substantial importance to the project. One

example of significant new information which was not

available in 1986 concerns the proposed feasibility study

of evaporation ponds as a means of limiting the increase

in Salton Sea salinity levels. (T,1,46:18-47:2). The results

from this study and other ongoing studies conducted by

IID and other agencies should be considered in determin-

ing appropriate mitigation measures for the adverse envi-

ronmental impacts identified in the 1986 EIR.

‘Characteristic of the non-specific mitigation measures specified in

the EIR are statements such as “habitat loss and degradation will be

mitigated by enhancing other habitats or creating new ones”. (IID, 2.

p. 5-2)

8.0

8.1

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LEGAL PRINCIPLES APPLICABLE TO IID

WATER CONSERVATION PROPOSALS

Constitutional and Statutory Requirements to Mazi-

mize Beneficial Use of Water

Article X, Section 2 of the California Constitution sets

forth the basie policy governing all water use in the State

of California:

“It is hereby declared that because of the conditions

prevailing in this State the general welfare requires

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 waters 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.

The right to water or to the use or flow of water in or

from any natural stream or water course 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.... This section shall be self-exeeuting, and

the Legislature may also enact laws in the further-

ance of the policy in this section contained.” (Em-

phasis added.)

A similar mandate is set forth in Section 100 of the

California Water Code. These basic constitutional and

statutory provisions reflect several important principles.

First, the California Constitution and Water Code

prohibit the wasteful or unreasonable use, method of use

or method of diversion of water. Numerous factors which

87a

should be considered in evaluating instances of alleged

waste or unreasonable use are discussed in Decision 1600.

(Decision 1600, pp. 24-29).° A key concept relevant to the

future use of Colorado River water by water users in

California is set forth in a 1935 California Supreme Court

decision regarding water use in * .other area of the state:

“What is a beneficial use, of course, depends upon

the facts and circumstances of each case. What may

be a reasonable beneficial use, where water is present

in excess of all needs, would not be a reasonable

benefic:al use in an area of great scarcity and great

need. What is a beneficial use at one time may, because

of changed conditions, become a waste of water at a

later time.” (Tulare Irr. Dist. v. Lindsay-Strathmore

Irr. Dist., 3 Cal.2d 489, 45 P.2d 972, 1007 (1935),

emphasis added.)

A second, and related, principle established by Article

X, Section 2 is that the limited availability of water for

use in California means that those water resources which

are available must be applied to the maximum beneficial

use of which they are capable. Merely making some

beneficial use of the water is not sufficient. Rather, benefi-

cial use of water is to be maximized and “the conservation

of such waters 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.”

The third principle reflected in Article X, Section 2 and

Water Code Section 100 is that the right to the use of

water extends only to such water as is reasonably re-

quired for the beneficial use to be served. Thus, if there

°See Kramer and Turner “Prevention of Waste and Unreasonable

Use of Water: The California Experience.” 1 Agricultural Law Jour-

nal 519, 522 (1980).

88a

are reasonable water conservation measures available to

reduce the quantity of water needed to serve existing

beneficial uses, then such conservation measures should

be utilized. Determination of reasonableness with respect

to water use and methods of use depends upon the

circumstances of each case in view of statewide considera-

tions, including “the ever increasing need for conserva-

tion of water in this state.” Joslin v. Marin Municipal

Water District 67 Cal.2d 132, 429 P.2d 889 (1967). In

circumstances where the constitutional standard of rea-

sonable use leads to the conclusion that additional water

conservation measures should be employed, a water user

cannot maintain a right to divert and use a quantity of

water which is needed only if unreasonable practices are

followed.

Stated differently, a water user cannot “bank’’ the

availability of a future water supply by failing to imple-

ment water conservation measures needed to comply with

Article X, Section 2 of the California Constitution. To the

contrary, under present California law, in a situation

where practical water conservation measures are availa-

ble, an established water right can be protected most

effectively by reducing the quantity of water used through

implementing water conservation measures. (See gener-

ally Water Code Section 1011).

With respect to encouraging water conservation in IID

specifically, in 1984 the Legislature enacted Water Code

Section 1012 which provides as follows:

“Notwithstanding any other provision of law, where

any person, public agency, or agency of the United

States undertakes any water conservation effort, ei-

ther separately or jointly with others entitled to

delivery of water from the Colorado River under

contracts with the United States, which results in

89a

reduced use of Colorado River water within the

Imperial Irrigation District, no forfeiture, diminu-

tion, or impairment of the right to use the water

conserved shall occur, except as set forth in the

agreements between the parties and the United

States.°

In summary, it must be recognized that a water right is

not necessarily protected simply by diverting water and

applying it to a beneficial use. Protection of the water

right also requires that the method of diversion and use

must be reasonable in view of all relevant circumstances.

The availability of financial resources for implementing

proposed water conservation measures is a factor to be

°A non-codified provision of the bill by which Section 1012 was

enacted provides:

“The Legislature finds and declares that the enactment of

Section 1012 of the Water Code is intended to clarify and make

specific existing California law in regard to water conservation

measures which may be taken within the Imperial Valley. In

enacting Section 1012 of the Water Code, it is not the intent of

the Legislature to alter the relationship of state and federal law,

as each may apply to the distribution and use of Colorado River

water.” (Stats. 1984, ¢. 429, § 1.)

The statement of intent was added in recognition of the legal

dispute regarding the effect of potential conflicts between specific

provisions of state law and the various aspects of federal statutes,

judicial decisions, agreements, and international treaties which gov-

ern diversion of water from the Colorado River and which are known

collectively as the “Law of the River”. The State Board’s position has

been that it will not attempt to resolve issues involving the right to

sell or transfer water outside of the priority scheme reflected in the

federal contracts for delivery of Colorado River water without first

determining that it has jurisdiction in the particular case and then

only pursuant to an orderly proceeding in exercise of that jurisdic-

tion. Such a proceeding would include the submission of legal briefs

by interested parties.

90a

considered in evaluating the reasonableness of an existing

method of diversion and use. If sufficient funding is

available to implement reasonable water conservation

measures, then the failure to implement such measures

could endanger the underlying water right. A water right

is protected most effectively under California law by

making reasonable and beneficial use of water while

implementing all reasonably available water conservation

measures.

8.2 Jurisdiction of State Water Resources Control Board

The responsibility of the State Water Resources Con-

trol Board to pursue the policies established by Article X,

Section 2 of the California Constitution is established by

several statutory provisions and judicial opinions. The

role of the Board with respect to California water re-

sources is summarized in Water Code Section 174 which

provides in relevant part:

“The Legislature hereby finds and declares that in

order to provide for the orderly and efficient admin-

istration of the water resources of the state it is

necessary to establish a control board which shall

exercise the adjudicatory and regulatory functions of

the state in the field of water resources.”

Water Code Section 275 charges the Department of

Water Resources and the State Board with the responsi-

bility of preventing the misuse of water in California:

“The department [of Water Resources] and board

{the State Water Resources Control 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.”

Se telnet Mae te nl

eat en

9la

The issue of the Board’s jurisdiction with respect to

water conservation in IID was raised in litigation initi-

ated by IID following entry of Decision 1600. In rejecting

IID’s argument regarding the alleged lack of Board

jurisdiction, the Court of Appeal for the Fourth Appellate

District concluded that “the Board’s authority includes

the power to adjudicate the Article X, Section 2, issue of

unreasonable use of water by IID.” Imperial Irrig. Dist. v.

BState Water Resources Control Board 186 Cal.App.3d

1160, 1171; 231 Cal.Rptr. 283, 290 (1986). The Court also

concluded that the a: judicatory authority of the Board in

the matter of unreasonable use would include the author-

ity to order IID “to submit a plan to conserve water as

was done here.” (186 Cal.App.3d at 1170, 231 Cal.Rptr. at

289.)

Following the Court of Appeal ruling confirming the

Board's jurisdiction in waste and unreasonable use pro-

ceedings, the suit was returned to the Superior Court for

review of Decision 1600. In its Statement of Decision

upholding Decision 1600, the Superior Court emphasized

that:

“While the Court agrees that the primary responsi-

bility for evaluating and implementing potential

water conservation measures for IID lies with the

District itself, it is the board (along with the Depart-

ment) which is charged with the responsibility of

preventing the misuse of water. Water Code § 275.

Furthermore, recent decisions have recognized a

‘broad’, ‘open-ended’, ‘expansive’ authority on the

part of the Board to undertake comprehensive plan-

ning and allocation of the State’s water resources.

[Citations omitted.] Indeed, as the Court stated in

United States v. State Water Resources Control Board

(1986) 182 Cal.App.3d 82 at page 129, ‘All water

92a

rights, including appropriative, are subject to the

overriding constitutional limitation that water use

must be reasonable.... To that end, the Board is

empowered to institute necessary judicial, legislative

or administrative proceedings to prevent waste or

unreasonable use....’”

The Superior Court remanded the matter to the Board

for the purpose of determining new dates of compliance

with the order provisions of Decision 1600.

8.3 Implementation of Water Conservation Measures Pur-

suant to Agreement to Transfer Conserved Water

As discussed in Sections 6.1 through 6.2.3, IID and

other interested parties have directed considerable atten-

tion to the possibility of funding additional water conser-

vation measures in IID as part of an agreement to

transfer the right to use water made available through

IID water conservation measures. With the enactment of

Water Code Section 109 in 1980, the California Legisla-

ture went on record in favor of promoting voluntary

transfers of water or water rights as a means of meeting

the State’s growing water needs. Specific authorization

for the transfer of water made available through water

conservation efforts is provided by subdivision (b) of

Water Code Section 1011:

‘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 subdivi-

sion (a), may be sold, leased, exchanged, or other-

wise transferred pursuant to any provision of law

relating to the transfer of water or water rights,

including, but not limited to, provisions of law gov-

erning any change in point of diversion, place of use,

and purpose of use due to the transfer.”

doer WA eine

93a

With respect to water conservation in IID, Water Code

Section 1012 provides that no diminution or impairment

of IID’s right to the use of conserved water shall oceur,

except as set forth in the agreement between the partici-

pating parties and the United States. In summary, the

California Water Code not only authorizes the voluntary

transfer of water made available through implementation

of conservation measures, but it actively encourages such

transfers and protects the underlying water right of the

agency which conserves the water.

8.4 Implementation of Water Conservation Measures Pur-

suant to Physical Solution Doctrine

The record clearly establishes the existence of alterna-

tive needs for water which could be made available

through IID water conservation, the feasibility of con-

serving substantial amounts of water through improve-

ments to the IID system, and the expressed interest of

IID and other water users in cooperating to implement

such improvements. Although a voluntary agreement be-

tween IID and other parties interested in the use of

conserved water appears to provide the most feasible way

of achieving significant water conservation in the near

future, the failure of the affected parties to reach an

agreement would not preclude the Board or the courts

from developing and ordering implementation of a ‘“‘physi-

eal solution” to the dispute. Under the physical solution

doctrine, a junior appropriator or appropriators could

finance improvements to IID’s water distribution system

in exchange for receiving the water made available

through such conservation measures.

94a

With respect to resolving a dispute between competing

water users in which the parties could not agree on a

physical solution, the California Supreme Court has

stated:

*... It is not only within the power but it is also the

duty of the trial court to admit evidence relating to

possible physical solutions, and if none is satisfae-

tory to it to suggest on its own motion such physical

solution. [Citations omitted.] The court possesses

the power to enforce such soiution regardless of

whether the parties agree.” (City of Lodi v. East Bay

Municipal Utility District (1936) 7 Cal.2d 316, 60

P.2d 439, 450).

The Court went on to say in the Lodi decision that, if a

physical solution is ordered to be implemented, any sub-

stantial cost should be borne by the holder of the junior

right. (Id., 7 Cal.2d at 341, 60 P.2d at 450). With respect

to water transfer proposals between IID and MWD, if the

ongoing negotiations prove unsuccessful, the dispute

could be resolved pursuant to the physical solution doc-

trine’ If the physical solution doctrine were applied, it

would be necessary to determine which water conserva-

tion measures should be implemented and how the holder

of the junior right would pay the reasonable cost of

implementing the selected measures. It is reasonable to

assume that environmental mitigation measures and other

expenses directly attributable to the water conservation

program would be included as part of a physical solution

and the associated costs. Any programs which are unre-

‘For a general discussion of the physical solution doctrine and

application of the doctrine to water conservation in the Imperial

Irrigation District, see Harrison C. Dunning, “The ‘Physical Solu-

tion’ In Western Water Law,” University of Colorado Law Review,

Vol. 57, No. 3, Spring 1986.

eae Real alae a | ale a Clin all cnt

95a

{

lated to water conservation measures, however, would not

normally be included in the calculation of costs of imple-

menting a physical solution.

9.0 CONCLUSION

Sinee the issuance of Decision 1600, IID has under-

taken or expanded a wide variety of studies and programs

to increase water conservation. IID has prepared a com-

prehensive array of planning documents which identify

various water conservation measures which could be im-

plemented and a tentative implementation schedule under

differing assumed conditions. Limitations resulting from

present methods of funding, however, have impeded im-

plementation of additional conservation measures and

have even reduced the rate of canal lining in recent years.

The tentative schedule for implementation of water con-

servation measures proposed in the IID planning docu-

ments is highly contingent upon the District developing

adequate financing. In the absence of additional sources

of funding for water conservation, it is very unlikely that

IID will implement all or a major portion of the water

conservation measures identified in its plans at any time

in the near future.

Implementation of the water conservation measures

proposed by IID would require a period of several years

before the major portion of water conservation is

achieved. The evidence firmly establishes that there will

be a need for water which could be made available within

the period of time required for implementation of identi-

fied water conservation measures as specified in IID’s

recent proposals. In order to comply with the constitu-

tional mandate to maximize beneficial use of water, it is

imperative to establish a definite schedule for implement-

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96a

ing a comprehensive water conservation program and to

begin implementation as soon as possible.

The numerous studies and planning documents already

developed by IID provide a solid basis of information

from which to finalize a specifie water conservation plan

and implementation schedule. Impl

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