El Dorado Irrigation District v. State Water Resources Control Board

In this water rights case, El Dorado Irrigation District and El Dorado County Water Agency (jointly El Dorado) sought and received from the State Water Resources Control Board (the Board) the assignment of an application to appropriate water from the South Fork of the American River that was filed by the state more than 75 years ago, in 1927. The benefit of the assignment of this state-filed application was that El Dorado’s right to divert water would be deemed senior to other appropriative rights based on applications filed after 1927.

*943 Ultimately, however, the Board decided to include in El Dorado’s permit a standard term (term No. 91) that requires the appropriator to curtail its diversion of water when the United States Bureau of Reclamation (the Bureau) and/or the Department of Water Resources (the Department) are releasing stored water from the Central Valley Project (the CVP) and/or the State Water Project (the SWP) to meet water quality objectives in the Sacramento-San Joaquin Delta. 1 The Board included this term in El Dorado’s permit even though other water users in the Delta watershed with appropriative water rights based on applications filed after 1927…

Concurring and Dissenting. — I concur in the judgment and in the opinion except that I dissent from the reasons given in support of parts IIA and IIB of the Discussion.

This case arises on the review of the quasi-adjudicatory action of the State Water Resources Control Board (the Board) that imposed a condition on permits issued to the El Dorado Irrigation District and the El Dorado County Water Agency (jointly El Dorado). The condition, standard term No. 91, requires El Dorado to curtail its diversion of water from the American River and Folsom Dam when the United States Bureau of Reclamation (the Bureau) or the Department of Water Resources (the Department) is releasing stored water from the Central Valley Project (CVP) or the State Water Project (SWP) (jointly the projects) to meet water quality objectives in the Sacramento-San Joaquin Delta (Delta) for salinity control and the protection of fish and wildlife.

The trial court ruled in favor of El Dorado. An appeal was taken by the Board, Westlands Water District (Westlands) and State Water Contractors *980 (parties which contract with the CVP for water), 1 but not by the Department. 2 The Bureau did not make an appearance.…

Concurring. — I concur in Justice Robie’s opinion.

When I first reviewed this case, I thought that the equities were clearly with the board: After all, why couldn’t the board assign the state’s water rights subject to a condition that would preserve water quality of the Delta? What public purpose is served by upholding El Dorado’s technical claim based on priority?

But, upon reflection, I do not think the equities are with the board.

The board has never denied that application No. 5645 would give El Dorado a 1927 priority date. Rather, the board found, “the seniority of El Dorado’s right ... is irrelevant . . . .” As Justice Robie’s opinion makes clear, this conclusion was wrong.

There was a way for the board to deal in a straightforward way with El Dorado’s 1927 priority. Water Code section 10504 provides in pertinent part, “The board may release from priority . . . any application filed under this part *979 when the release ... is for the purpose of development not in conflict with such general or coordinated plan or with water quality objectives established pursuant to law.”

The board has not released El Dorado’s 1927 priority. In my view, this statute would allow the…

Best Best & Kreiger, Gregory K. Wilkinson and Eric L. Garner, Riverside, for Real Party in Interest and Appellant State Water Contractors.

Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O'Hanlon and Andrew P. Tauriainen, Sacramento, for Real Party in Interest and Appellant Westlands Water District.

ROBIE, J.

In this water rights case, El Dorado Irrigation District and El Dorado County Water Agency (jointly El Dorado) sought and received from the State Water Resources Control Board (the Board) the assignment of an application to appropriate water from the South Fork American River that was filed by the state more than 75 years ago, in 1927. The benefit of the assignment of this state-filed application was that El Dorado's right to divert water would be deemed senior to other appropriative rights based on applications filed after 1927.

Ultimately, however, the Board decided to include in El Dorado's permit a standard term (term No. 91) that requires the appropriator to curtail its diversion of water when the United States Bureau of Reclamation (the Bureau) and/or the Department of Water Resources (the Department) are releasing stored water from the Central Valley Project (the…