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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 857

## Text

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,
V.

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

39

10

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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-

46

51

53

101

119

121

127

ll

12

13

14

15

16

21

22

2a

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

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

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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

t

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

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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,

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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,

V.

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
id

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
OF
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
ee

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

25

38

39

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.

62

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

- 22
8.4 Factors To Be Considered in

Evaluating Instances of Alleged
Waste and Unreasonable Use....... 24

ee

153a

8.4.1 Other Potential Beneficial Uses for

Conserved Water.................. 24
8.4.2 Whether the Excess Water Now

Serves a Reasonable and Beneficial

I tie Ce Ses bik) soo o> 0.0 s oo ae
8.4.3 Probable Benefits of Water Savings ... 26
8.4.4 The Amount of Water Reasonably

Required for Current Use .......... 26
8.4.5 Amount and Reasonableness of the

Cost of Saving Water.............. 27

4.4.6 Whether the Require’ Methods of
Saving Water Are Conventional and
Reasonable Rather Than

iss so cs es cvs 27
8.4.7 A Physical Plan or Solution.......... 28
9.0 WATER LOSSES WITHIN IMPERIAL

IRRIGATION DISTRICT ........... 29

9.1 Summary of Estimates of Water

SU TOG Se 5a oe et heb 6 ec scs cass 29
9.2 Department of Water Resources

ee 32
9.3 Estimates Submitted by John Elmore
9.4 Estimates Submitted by Imperial

Irrigation District................. 34
9.5 Estimates Prepared by the United

States Bureau of Reclamation ...... 35
9.6 Conclusions Regarding Water Losses

ee 36

10.0 IRRIGATION PRACTICES AND
OPPORTUNITIES FOR WATER

CRPISMEBU REBUN ccc ccc ccc cvcceces 37
10.1 Maintaining Canals in “Overly Full
er eat dns as ao 38
10.2 Absence of Regulatory Reservoirs ..... 39
10.3 Excess Delivery of Water to Farmers’
aS a aig oie u's we ech ae kt 40

Section

10.4

10.5

10.6
10.7
10.8

10.8.1
10.8.2
10.8.3
10.8.4

11.0
11.1
11.2
11.3
11.4

11.5
11.6

12.0

154a

Su t
Absence of Tailwater Recovery
PPPS eT TT eee

Requirements That Farmers Order
Water in 24-Hour Delivery Intervals

Enforcement of Tailwater Restrictions
Irrigation Education Program ........

Other Water Conservation
CmppOTtUARIOS. occ cer cccccccsccees

Lining Main and Lateral Canals ....
Lining the All-American Canal......
Reduction of Leachwater...........

System Automation and Other
ree eee ee eee

BENEFICIAL USES FOR

CONSERVED WATER..............

Use for Irrigation Within Imperial
Irrigation District .......2.-e0cees-.

Coachella Valley Water District.......
Metropolitan Water District ..........
Groundwater Storage ..........------
Development of Geothermal Power ....

Economie Feasibility of Water
ee hace ered de Oh 6.6000

EFFECTS OF IID INFLOW ON THE

8 8 7 ee

Description and History of the Salton
a awethen GEER O TN Obs ceecesees

Water Level of the Salton Sea........
Salinity of the Salton Sea............

Effects of Reducing Inflows to the
EE in conten beu sess these

155a

Subject
REVIEW OF IID WATER
CONSERVAT'ON MEASURES
13-Point Program and 21-Point
Program
ILD Response to DWR Request to
Prepare a Water Conservation Plan
IID Board of Directors Resolution
8-84
NEED FOR A COMPREHENSIVE
WATER CONSERVATION PLAN
CONCLUSION
ORDER

"=F PPVPSRSCeare eee eeoovesces

pit ee ee oe a ee ee a

156a

CITING THE RECORD

When citing evidence in the hearing record, the follow-
ing convention has been adopted:

Information derived from the hearing transcript:

T, IV, 22,01 - 24,15
. foe

nding page and line number (may be
omitted if a single line reference is
cited)

beginning page and line number

transcript volume number

identifying abbreviation of the information source

Information derived from an exhibit:

BOARD,5, E4
3

page number; tabie, graph, or figure number

exhibit number

identifying abbreviation of the information source

a OY Oe eee

157a

Abbreviations of the information sources are:

ES an ee John Elmore
wes vaOvcvs obs Department of Water Resources
RINNE 66 4 led 0s 0 cid Imperial Irrigation District
2 fee oe California Waterfow! Association
ee Colorado River Board

Sli dds cas beh vcue we Environmental Defense Fund
Ee ee Coachella Valley Water District
SESS a cwi-e es wens Department of Fish and Game
hi Ba 6 ss wi nee uses Salton Sea Property Owners
ce U.S. Bureau of Reclamation
PE a er IID Water Conservation Advisory Board
so ch a-c's oy 0 os « Hearing Transcript

hn hp IST ei gs ie State Water Resources Control Board

158a

DECISION REGARDING MISUSE OF WATER’
BY IMPERIAL IRRIGATION DISTRICT

BY THE BOARD:

Mr. John Elmore (complainant) having filed a request
for an investigation of the alleged waste and unreasonable
use of water by the Imperial Irrigation District (IID or
District); the Department of Water Resources (Depart-
ment or DWR) having conducted an investigation, pre-
pared a report and determined that a misuse of water was
occurring; the District having failed to take steps to
correct the problem to the satisfaction of the Department;
the Department having referred the matter to the Board
for hearing pursuant to California Administrative Code,
Title 23, Section 4004; the Board having conducted six
days of public hearing in E] Centro, California; the
complainant, the District, the Department of Water Re-
sources and other interested parties having appeared and
presented evidence; written closing statements and legal
briefs having been submitted; the evidence, closing state-
ments and legal briefs having been received and duly
considered; the Board finds as follows:

2.0 SUBJECT OF DECISION

In response to a complaint alleging waste and unrea-
sonable use of water by Imperial Irrigation District (Dis-
trict), a hearing before the State Water Resources
Control Board was held on September 27, 28 and 29,
1983, and December 12, 13 and 14, 1983, in El] Centro,
California. The purpose of the hearing was to provide an

Article X, Section 2 of the California Constitution prohibits the
waste, unreasonable use, unreasonable method of use or unreasonable
method of diversion of water. All of these practices are included in
the definition of “misuse of water” set forth in Title 23, Section 4000
of the California Administrative Code.

159a

opportunity for all interested parties to present evidence
to assist the Board in determining if the practices of the
Imperial Irrigation District result in waste, unreasonable
use, unreasonable method of use, or unreasonable method
of diversion of water in violation of Article X, Section 2 of
the California Constitution. Most of the evidence
presented fell into three broad categories: exient of water
losses and opportunities for conserving water within the
Imperial Irrigation District; other beneficial uses and
users for water that might be conserved within the IID;
and the effect of IID water management practices on the
Salton Sea and surrounding area. On the basis of the
evidence presented, the arguments of the parties, and
consideration of applicable law, the Board concludes that
the provisions of Article X, Section 2 of the California
Constitution require that the Imperial Irrigation District
take several actions to improve its water conservation
program, as specified in this decision.

3.0 BACKGROUND OF PROCEEDING

By letter dated July 17, 1980, Mr. John Elmore re-
quested the Department of Water Resources to conduct
an investigation of the alleged misuse of water by the
Imperial Irrigation District. Mr. Elmore’s letter identi-
fied five specific practices of the District or conditions
within the District which allegedly resulted in a waste
and unreasonable use of water. (See Section 4.0.) By
letter dated July 18, 1980, Mr. Elmore requested that this
Board conduct a hearing on the alleged misuse of water
by the IID at the termination of the Department’s investi-
gation or the expiration of a reasonable time for such an
investigation.

In response to Mr. Elmore’s request, the Department of
Water Resources conducted an investigation of water
usage within IID. In December 1981, the Department

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submitted a Report of Investigation which found that
although operations of IID were improving, water was
being wasted that could be conserved for other beneficial
uses. (DWR, 1, Foreword, p. iii; DWR, 10.) The DWR
report identified a potential for conserving 438,000 acre-
feet per annum (afa) through a combination of physical
improvements and operational changes within IID.
(DWR, 1, p. 56.) The Department notified the District of
the findings of the report and requested that it submit a
water conservation plan within six months.

The District initially agreed to prepare a water conser-
vation plan, and later requested an extension of time to
submit the plan. (IID, 10B; IID, 10C.) By letter dated
September 29, 1982, however, the District reviewed its
water conservation efforts and advised the Department
that the District considered its use of water to be reason-
able and not to involve unnecessary waste. (IID, 10D.)
The Department concluded that the IID letter was not
responsive to the request to develop a water conservation
plan and referred the matter to the Board pursuant to the
provisions of California Administrative Code, Title 23,
Sections 4000 et seq.

By letter to Board Chairwoman Carole Onorato dated
May 3, 1983, Mr. Elmore’s attorney renewed his request
for a hearing or enforcement proceedings to eliminate the
alleged misuse of water by the IID. Other letters support-
ing Mr. Elmore’s request for a hearing were received from
Francis E. and Elizabeth D. Griset; R. Raymond and
Jean Campbell Griset; attorney Lowell F. Southerland on
behalf of some 70 property owners in the vicinity of the
Salton Sea; Citizens for a Better Environment; Harold
Kelso Hunt, II; and the Environmental Defense Fund.
(Board 1, Correspondence File.) In accordance with Cali-

“16la

fornia Administrative Code, Title 23, Section 4004, the
Board scheduled the matter for hearing.

4.0 ALLEGATIONS OF JOHN ELMORE

By letter dated June 17, 1980, John Elmore requested
the Department of Water Resources to investigate the
alleged misuse of water by Imperial Irrigation District
resulting from allegedly wasteful management and mar-
keting practices. (DWR, 1, Appendix A.) Mr. Elmore is a
farmer with acreage adjacent to the Salton Sea which he
has had to protect with dikes due to the rising level of the
Salton Sea. His letter alleges that the rise in the level of
the Salton Sea has been caused by the following policies
and practices within the Imperial Irrigation District:

a. Maintaining canals in overly full conditions
causes frequent spills at the terminal end of the
canals.

b. The absence of reservoirs for regulation of ca-
nal flows causes the unnecessary delivery of
excess amounts of water. This results in cana!
spills and runoff into the Salton Sea.

c. Excess water is delivered te farmers’ headgates
resulting in excess tailwater.

d. There is an absence of tailwater recovery sys-
tems within the IID. Tailwater recovery sys-
tems would allow use of runoff for productive
purposes.

e. Farmers are required to order water in 24-hour
delivery intervals and the delivery cannot rea-
sonably be terminated after sufficient water is
received. Excess water from the deliveries

drains unused into the Salton Sea.

162a

The allegations of Mr. Elmore’s complaint and other
aspects of Imperial Irrigation District operations are
addressed in Section 10 below.

5.0 DESCRIPTION OF IMPERIAL IRRIGATION
DISTRICT

5.1 Geographic Description

The Imperial Irrigation District is located in Imperial
County between the southern end of the Salton Sea and
the Mexican border. The New and Alamo Rivers traverse
the valley from Mexico to the Salton Sea which is a
natural sump. The IID encompasses 1,062,290 acres, of
which about 460,000 acres are irrigated each year. The
main crops grown in the Imperial Valley are alfalfa,
wheat, cotton, sugar beets and lettuce. There are approxi-
mately 16,000 acres devoted to urban land use with a
population of about 95,000 concentrated mainly in the
towns of E] Centro, Brawley and Calexico.

The soils within the IID vary from the Imperial Clays
with a low permeability to highly permeable sandy soils.
There is a high degree of unpredictable stratification of
the soils within the District. This makes it difficult to
apply water evenly and to obtain the necessary penetra-
tion for effectively leaching salts from the soil. Land
leveling has helped in attaining water penetration of the
soils with low permeability. Extensive tile drain installa-
tion has been required to keep tiie soil from becoming
water logged and to attain the leaching needed because of
salts in the soil and irrigation water.

The average annual rainfall in the area is approxi-
mately 2.8 inches. (DWR, 1, p. 5.) From 1976 through
1981 rainfall measured at three gaging stations around
the Salton Sea averaged about 4.5 inches per year due to
several large tropical storms. (Board 1, 1982 Hess Geo-

Bal ee

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technical Corp. report, Volume 1.) Complete records of
rainfall measurements in the Imperial Valley are shows n
Board Exhibit 5.

9.2 Irrigation Delivery and Drainage System

All irrigation, municipal, industrial and domestic water
used within the Imperial Valley is supplied by the IID
from the Colorado River. The delivery system which
begins at the Imperial Dam includes about 1,760 miles of
conveyance and distribution facilities.

When the IID places an order for water with the U.S.
Department of Interior, Bureau of Reclamation (Bureau
or USBR), the request is made six to ten days prior to the
time the water is to be delivered to the farmers’ head-
gates. Water which is to be diverted into the All-American
Canal at Imperial Dam must be released from Hoover
Dam approximately 305 miles upstream. The water passes
through U.S. Bureau of Reclamation facilities at Lake
Mojave and Lake Havasu on the Colorado River before
flowing downstream to Imperial Dam. Water which is
diverted into the All-American Canal is distributed to the
East Highline, Central Main and Westside Main Canals
which are the three major canals that supply water to the
smaller canals throughout the valley. The water is regu-
lated by approximately 500 control gates and 5,500
farmer headgates. This entire delivery system operates
through gravity flow.

The IID also operates and maintains approximately
1,450 miles of drainage canals to collect irrigation return
flows. These canals drain into the New and Alamo Rivers
which in turn drain into the Salton Sea. During the period
1965 to 1980, IID diversions from the Colorado River
averaged 2,855,000 afa. (IID, 16, Attachment 3.) Of this
amount, an average of 1,036,446 afa entered the Salton

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Sea as irrigation return flow from IID. IID return flow
constituted about 71 percent of all inflow to the Salton
Sea during the years mentioned. (Elmore, 3, Table 3.)

5.3 Hydroelectric Power Generation

The IID has constructed and operates hydroelectric
power plants at Drops 1 through 5 along the All-American
Canal. The fiow capacities for these power plants are as
follows:

Roce 4-60-609580eR 5,350 efs
3 | rere rrr 6,000 cfs
SR ios dive cenedereneun 6,000 cfs
ads a ho abou coeanen 6,000 cfs
eee rr 3,000 efs

(T, IV, 67, 18-68,03; attachment to letter dated Octo-
ber 13, 1983 from R. L. Knox to Raymond Walsh of the
SWRCB.) From 1960 to 1982 there has been an increase
in the generation of power from 69.5 to 81.4 Kilowatt
hours per acre-foot. The revenue from this power has
increased in the same period from $1.096 to $4.649 per af.
(IID, 16, Attach. 25.) At present day costs, 100,000 af of
water would generate $464,900 in revenue for the IID.
IID submitted evidence indicating that all the water
diverted through the All-American Canal passes through
the power plants and is used to generate electricity. (IID,
6, p. 4.)

6.0 PARTICIPANTS AT HEARING

The following parties made evidentiary presentations
at the hearing: Mr. John Elmore, Department of Water
Resources, Imperial Irrigation District, California Water-
fowl Association, Colorado River Board, Environmental
Defense Fund, Coachella Valley Water District, Depart-

165a

ment of Fish and Game, Salton Sea Property Owners, *
U.S. Bureau of Reclamation, and the Imperial Irrigation
District Water Conservation Advisory Board.

In addition to parties making evidentiary presenta-
tions, the following persons made non-evidentiary policy
statements at the time of the hearing: Dr. Wiley Horne,
representing Metropolitan Water District (MWD);
Mr. William DuBois; Mr. Robert Adams; Mr. Ross Deter,
representing the California Energy Commission; Mr. Bob
Goodson, representing Southern California Edison;
Mr. James M. Bucher; Mr. Luis Legaspi, representing the
Imperial County Board of Supervisors; Mr. Jack Strobel;
Mr. Ron Ackert, representing the Salton Sea Fish and
Wildlife Club; Ms. Margaret Matsui, representing the
Vantuna Research Group of Occidental College; Mr. Cliff
Hurley; Mr. Charles Westmoreland; and Mr. Lloyd
Heger.

7.0 WATER RIGHTS

The right of Imperial Irrigation District to divert and
use water from the Colorado River is not at issue in this
proceeding except insofar as that right is limited by the
State Constitutional prohibition of waste and unreasona-
ble use or method of use of water. (California Constitu-
tion, Article X, Section 2.) As discussed in Section 8.0,
however, an important aspect of determining the reasona-

*The plaintiffs in two separate lawsuits against IID participated in
this proceeding through their attorney, Lowell F. Southerland, and
were referred to as the “Salton Sea Property Owners”. The lawsuits
in which said parties are plaintiffs are Salton Bay Marina, Inc., et al.
v. Imperial Irrigation District (Imperial County Superior Court
No. 48157) and Anderson, et al. v. Imperial Irrigation District and
Coachella Valley Water District (Imperial County Superior Court
No. 57249). Appeals in both cases are pending.

166a

bleness of the District’s present water usage is to examine
the alternative uses which may be made of water saved
through conservation. The Colorado River is an interstate
watercourse which has been subject to considerable water
rights litigation. Consequently, the evaluation of alterna-
tive uses necessarily involves review of the legal frame-
work governing the allocation of Colorado River water
among competing users.

7.1 Boulder Canyon Project Act

The Boulder Canyon Project Act was enacted on De-
cember 21, 1928. (43 U.S.C. §$§ 617 et seq.) The purposes
of the Act are flood control, improvement of navigation,
regulation of flows, storage and delivery of stored waters
for reclamation and other beneficial uses exclusively
within the United States, and for the generation of elec-
tric energy. The Act authorizes construction of Hoover
Dam and Power Plant and construction of the All-Ameri-
ean Canal serving the Imperial and Coachella Valleys.

Section 5 of the Boulder Canyon Project Act authorizes
the Secretary of the Interior (Secretary) to enter into
water delivery contracts with users in the lower basin
states. The section also provides that no person can have
the use of stored Colorado River water without a contract
with the Seeretary. (43 U.S.C. § 617d.) Before entering
into any agreements with water users in California, the
Secretary requested the State to agree on a listing of
relative priorities of rights among the major users of
Colorado River water. The result of this request was the
“California Seven-Party Agreement” of August 18, 1931.

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7.2 California Seven-Party Agreement

The parties to this agreement agreed that their respec-
tive claims to Colorado River water should be accorded
the following priorities:

TABLE |

WATER ALLOTMENT — CALIFORNIA
SEVEN-PARTY AGREEMENT

Acre-feet
Priority Description Annually
1 Palo Verde !rrigation District !
gross area of 104,500 acres
2 Yuma Project (Reservation Division)
not exceeding a gross area of 25,000 +
acres | 3,850,000
3(a) Imperial Irrigation District and
lands in Imperial and Coachella
Valleys to be served by AAC
3(b) Palo Verde Irrigation District —
16,000 acres of mesa lands
4 Metropolitan Water District and/or
City of Los Angeles and/or others 550,000
on coastal plain
5(a) Metropolitan Water District and/or
City of Los Angeles and/or others 550,000
on coastal plain
5(b) City and/or County of San Diego 112,000
6(a) Imperial Irrigation District and lands in
Imperial and Coachella Valleys 300,000
6(b) Palo Verde Irrigation Distriet —
16,000 acres of mesa lands
eee 5,362,000

Under the Supreme Court decision in Arizona v. Cali-
fornia, 373 U.S. 546. 83 S.Ct. 1468 (1963), California's
share of the 7.5 million acre-feet per annum (mafa)
allocated to the lower basin states is limited to 4.4 mafa
plus one-half of any surplus over the 7.5 mafa. Thus,
California’s allotment when no surplus water is present

168a

would fulfill only the first four priority claims. Of the
total 1,212,000 afa to which Metropolitan Water District
has claims,” only 550,000 afa will be provided if California
is limited to a total of 4.4 mafa. This amount could be
further reduced if other rights and claims not covered by
the Seven-Party Agreement are deducted from MWD’s
fourth priority right (CRB, 1, Table 2.) If use of water by
any of the higher priority users were reduced below the
agreed upon allotments, however, the unused water would
be available to Metropolitan Water District or the other
parties to the agreement in order of priority as specified
in the above schedule.

7.3. Water Delivery Contracts

Following execution of the Seven-Party Agreement in
1931, the Secretary of the Interior entered into water
delivery contracts with the water users in California.
Each of the current contracts with the parties to the
Seven-Party Agreement includes the complete schedule of
priorities and quantities established by that agreement.
(CRB, 1, p. 10.) Thus, under the contract between the
Secretary of the Interior and IID dated December 1,
1932, the IID and the other areas listed in the first three
priorities of the Seven-Party Agreement are to receive
3,850,000 afa total. Of this amount, IID’s “present per-
fectec right’* has been determined to be the lesser of

‘This includes the MWD allotments which total 1.1 mafa as shown
in Table 1 plus the allotment to the City and/or County of San Diego
of 112,000 afa that has been assigned to MWD.

“Present perfected right” was defined by the Supreme Court as a
“water right acquired in accordance with state law, which has been
exercised by the actual diversion of a specific quantity of water that
has been applied to a defined area of land or to definite municipal or
industrial works” and, in addition, present perfected rights include
rights created by federal reservation whether or not applied to

169a

2,600,000 afa or the quantity necessary to supply the
consumptive use required for irrigation of 424,145 acres
and for satisfaction of related uses. Arizona v. California,
439 U.S. 419, 429 (1979). To the extent that the first and
second priority users do not utilize their full allotments,
IID may receive additional water. In recent years, IID’s
water use has averaged about 2,900,000 afa. (DWR, 1,
p. 50.)

7.4 U.S. Supreme Court Decisions

Although the Boulder Canyon Project Act authorized
the lower basin states to enter into an agreement allocat-
ing their respective shares of Colorado River water, no
such agreement was reached. Nevertheless, the Secretary
of the Interior entered into contracts for delivery of water
to users in the lower basin states, before the water rights
of each state were resolved. In order to obtain Congres-
sional authorization for the Central Arizona Project,
Arizona filed suit in the Supreme Court in 1952 against
California and seven public agencies within California.
Following an extensive trial, the Supreme Court issued
its opinion on June 3, 1963. (Arizona v. California, 373
U.S. 546, 83 S.Ct. 1468.)

Three points in the Court’s opinion are particularly
significant with respect to determination of the rights of
California as a state, and the rights of the water users
within the state to the water of the Colorado River. First,
the Court concluded that by enacting the Boulder Canyon
Project Act, Congress established a statutory apportion-
ment of mainstream Colorado River water among the
lower basin states. The division of water adopted by

beneficial use. As used in the Arizona v. California decree, present
perfected rights were determined as rights existing as of June 25,
1929, the effective date of the Boulder Canyon Project Act. (376 U.S.
340, 341, 84 S.Ct. 755, 756 (1964).)

170a

Congress allocates 4.4 mafa to California, 2.8 mafa to
Arizona and 300,000 afa to Nevada. Any surplus water
after the first 7.5 mafa would be divided evenly between
Arizona and California. Although the lower basin states
had failed to enter into an agreement as authorized by the
Act, the Court concluded that the Act gave the Secretary
of the Interior adequate authority to accomplish the
allocation of water among the lower states by empowering
the Secretary of the Interior to make contracts for water
delivery and by providing that no person could have water
without a contract. (J/d., 373 U.S. at 564, 565, 83 S.Ct. at
1480.)

The second important point of the Supreme Court
decision is that it settled the issue of whether the alloca-
tion of water reflected in the Boulder Canyon Project Act
referred to water in the Colorado River and its tributar-
ies, or whether it referred only to water in the “main-
stream” of the river. Contrary to California's position, the
Court held that Congress intended the allocation to apply
only to mainstream water downstream from Lee Ferry
and not to water in Colorado River tributaries down-
stream of that point. (373 U.S. at 572, 83 S.Ct. at 1483.)

The third point relevant to evaluation of California
water users’ rights to Colorado River water is that the
Court held that Congress intended that the contracts
entered into by the Secretary of the Interior would deter-
mine which users within each state were entitled to
receive water. The Court further held that the Secretary's
contracts were not limited by the law of prior appropria-
tion. (373 U.S. at 580, 581, 83 S.Ct. at 1487, 1488.)
However, the Court went on to acknowledge that despite
the significance of the Secretary's contracts, Section 18 of
the Boulder Canyon Project Act “plainiy allows the
States to do things not inconsistent with the Project Act

l7la

or with federal control of the river.”” (373 U.S. at 588, 83
S.Ct. at 1491, 1492.)

The role of state law with respect to the water rights of
Imperial Irrigation District was explained further by the
Supreme Court decision in Bryant v. Yellen, 447 U.S. 352,
100 S.Ct. 2231 (1980):

“In the first place, it bears emphasizing that the § 6
[of the Boulder Canyon Project Act] perfected right
is a water right operating under state law... in
providing for these rights the Secretary [of Interior]
must take account of stete law. In this respect, state
law was not displaced by the Project Act and must be
consulted in determining the content and character-
istics of the water right that was adjudicated to the
District by our decree [in Arizona v. California}.”
447 U.S. at 371, 372.

Regulation to prevent waste and unreasonable use of
water within each of the states receiving Colorado River
water is not inconsistent with any provision of the Boul-
der Canyon Project Act. Further, as discussed in Sec-
tion 8.0 below, regulation to prevent waste and
unreasonable use of water is a clearly established element
of California water law. Therefore, in accordance with the
Supreme Court decisions in Arizona v. California, supra,
and Bryant v. Yellen, supra, the use of water by Imperial
Irrigation District is subject to the provisions of Califor-
nia law regarding waste and unreasonable use.

7.5 Transfer of Conserved Water

Under the existing allocation system, conserved water
not used by IID would be available to other parties to the
Seven-Party Agreement in order of priority. In appropri-
ate conditions, the conserved water presumably could be
transferred directly to another party by agreement be-

172a

tween IID and the other party. Due to the structure of the
Seven-Party Agreement, it may also be prudent to secure
the consent of parties who hold higher priority rights than
are held by the party to whom the conserved water would
be transferred. As a practical matter, consent to the
transfer by the Secretary of the Interior or his designee
would be required since the Bureau of Reclamation con-
trols the flow of Colorado River water. The written state-
ment submitted by the Bureau of Reclamation indicates
that the major incentive for the Bureau to study water
conservation potential within the IID was to identify
water which could be made available to other users.
(USBR, 1, p. 3.) Thus, the evidence indicates that the
Bureau would support a workable water transfer
arrangement.

The representative of the Colorado River Board ex-
pressed the opinion that the consent of all parties to the
Seven-Party Agreement would be required to achieve a
direct transfer (T, IV, 102,19-103,11), but the agreement
itself is silent on the subject. If a given party were not
adversely affected by a proposed transfer, it is by no
means certain that the party’s consent would be required.
Even if consent of all seven parties were required, there
has been no indication that such consent would not be
forthcoming.

One example of a water transfer arrangement is pres-
ently in effect. The transfer involves an agreement be-
tween MWD and the Coachella Valley Water District
(CVWD) for use of a portion of the water conserved by
lining the Coachella Branch of the All-American Canal.
At such times as the CVWD does not need all or a portion
of the conserved water, MWD will be able to receive the
water in exchange for paying a portion of CVWD’s repay-

173a

ment costs of lining the Coachella Branch of the All-
American Canal. (EDF, 3, 61.)

The distribution of Colorado River water among Cali-
fornia water users is governed by the users’ contracts
with the Secretary of the Interior. In addition to contrae-
tual rights to the delivery of water by the USBR, IID
holds appropriative water right permits from the State.”
Following the Arizona v. California decision, supra, the
role of the state permit system is not entirely clear.
However, if the IID were to engage in a water transfer
arrangement, the area of use specified in the permits
could be amended following submission and approval of a
petition to change the place of use. (Water Code Sec-
tions 1701 et seq.) Where other water users are not
adversely affected, no provision of state law would pre-
vent a transfer of water from occurring. In fact, Water
Code Section 1011] expressly authorizes the sale, lease,
exchange or other transfer of water saved through conser-
vation efforts. Under appropriate circumstances, the max-
imum beneficial use provision of Article X, Section 2 of
the California Constitution may mandate the transfer of
surplus water to water-short areas.

In summary, although a direct water transfer arrange-
ment would require agreement between IID and another
participating party, together with at least the tacit ap-
proval of the Bureau of Reclamation, there do not appear
to be any significant legal barriers to such a transfer.

7.6 Summary of Water Right Considerations

The Supreme Court's ruling in Arizona v. California,
supra, established that rights to water from the main

“Imperial Irrigation District has received water night permits on
Applications 7482, 7739, 7740, 7741, 7742, 7745, and 544

174a

stem of the lower Colorado River are governed primarily
by the provisions of water delivery contracts with the
Secretary of the Interior. In the case of California users,
the water delivery contracts are based upon the Seven-
Party Agreement which in turn is based upon claims to
water rights acquired under state law. The priorities
reflected in the Seven-Party Agreement were carried over
into the Secretary of the Interior’s contracts with major
California water users.

The Supreme Court’s 1964 decree calls for delivery of
4.4 mafa to California water users out of the first 7.5 mafa
available to the lower basin states. (Arizona v. California,
376 U.S. 340, 84 S.Ct. 755.) Subsequent legislation pro-
vides that the Secretary must deliver at least 4.4 mafa to
California at any time the Central Arizona Project diverts
any water. (43 U.S.C. § 1521(b).) In addition to the 4.4
mafa, the Secretary must deliver to California half of any
surplus over 7.5 mafa which he determines is avail-
able to the lower basin states. In addition, the Secretary
ean allow California to divert water allocated to Nevada
and Arizona which they cannot use in a particular year. A
reduction of water diversion by Imperial Irrigation Dis-
trict would increase the water available to serve unful-
filled contractual demands by California water users. A
reduction of water diversion by IID could also occur as
part of a water transfer agreement. The subject of alter-
native uses and demand for water conserved by IID is
addressed below in Section 11.

175a

8.0 LEGAL ASPECTS OF WASTE AND UNREA-
SONABLE USE DETERMINATIONS

8.1 Constitutional and Statutory Provisions

The State’s policy on prevention of waste and unreason-
able use of water is based upon Article X, Section 2 of the
California Constitution which 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 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
publie 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 benefi-
cial 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-
executing, and the Legislature may also enact laws in
the furtherance of the policy in this section
contained.”

A similar limitation is repeated in Section 100 of the
Water Code. In addition, Section 275 of the Water Code
charges the Department of Water Resources and the
State Water Resources Control Board with the responsi-
bility of preventing the misuse of water:

“The department [of Water Resources] and board
[the State Water Resources Control Board] shall

176a

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.”’

The language of the California Constitution and the
Water Code refer to “waste or unreasonable use or unrea-
sonable method of use or unreasonable method of diver-
sion of water” as matters which are to be prevented. This
broad language clearly establishes that any misuse of
water is prohibited whether the misuse results from the
tvpe of use, the manner of use or the manner of diverting
the water to the place of intended use. Since all types of
misuse are prohibited, it generally is not productive to
attempt to label a given practice or situation as an
“unreasonable use” as opposed to an “unreasonable
method of use”, ete. In all instances, the key determina-
tion is one of reasonableness. This fact is implicitly
recognized in the administrative regulations discussed
below which refer generally to the “misuse”’ of water.

8.2. Joint Administrative Regulations

As previously discussed in Section 3.0, the present case
was brought to the attention of the Board and the De

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2325%3A2. Public record. Not legal advice.