Gawthrop, Janet

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UCLAUCLA Journal of Environmental Law and PolicyTitleBalancing Water Projects and Wildlife: New Authority for the California Water Resources Control BoardPermalinkhttps://escholarship.org/uc/item/4540g7n2JournalUCLA Journal of Environmental Law and Policy, 6(1)AuthorGawthrop, JanetPublication Date1986DOI10.5070/L561018721Copyright InformationCopyright 1986 by the author(s). All rights reserved unless otherwise indicated. Contact the author(s) for any necessary permissions. Learn more at https://escholarship.org/termseScholarship.org Powered by the California Digital LibraryUniversity of CaliforniaBalancing Water Projects and Wildlife:New Authority for the CaliforniaWater Resources Control BoardIn United States v. State Water Resources Control Board,I theFirst Appellate District Court of California held that a state regula-tory agency may modify the rights granted in water permits in or-der to protect fish and wildlife. This decision alters the existingblend of appropriative and riparian water rights in California bygranting the State Water Resources Control Board (Water Board)the authority to amend existing water rights permits in order to en-force its decisions on water quality.Pursuant to the court's holding, the present allocation of waterrights will remain in place until the current permits expire in 1987.At that time, the Water Board will review the existing allocation ofwater rights and adjust them to meet the Board's water quality stan-dards. During its review of federal and state water project permits,the Water Board will have wide discretion to balance competingbeneficial uses-including protection of fish and wildlife.BACKGROUND OF PROJECT USE AND BOARD ACTIONIn 1978, the Water Board issued the Water Quality Control Planfor the Sacramento-San Joaquin Delta and Suisun Marsh, com-monly referred to as Water Right Decision 1485.2 This plan modi-fied water permits for both the Central Valley Project, whichprovides water to the San Joaquin Valley, and the State Water Pro-ject by requiring their use to conform with water quality standardsset for the Sacramento-San Joaquin Delta.3Prior to the Board's issuance of Decision 1485, the projects ex-1. 182 Cal. App. 3d 82, 227 Cal. Rptr. 161 (1986) 27 Cal. Official Reports 1986,Sect. 8, Cumulative Subsequent History, at 166.2. California State Water Resources Control Board Decision No. 1485 (1978).3. 182 Cal. App. 3d at 107, 227 Cal. Rptr. at 172. The Central Valley Project isoperated by the United States Bureau of Reclamation. The California Department ofWater Resources operates the State Water Project. The court described the affectedarea as "a large lowland area with a labyrinth of natural channels in and around theconfluence of the Sacramento and San Joaquin Rivers. The bounded area is roughlytriangular, with Sacramento at the north, Vernalis at the south and Pittsburg at thewest." Id.JOURNAL OF ENVIRONMENTAL LAW [Vol.6:105ported enough water from the Sacramento River drainage area tosignificantly reduce the amount of fresh water in the Delta. Thiscreated saltwater intrusion problems, particularly during droughtyears. Absent a certain level of fresh water, sea water from SanFrancisco Bay invaded the area. Through Decision 1485 the WaterBoard sought to ensure a minimum of fresh water in the Delta mix-ture.4 The Board's decision required the projects to take correctivemeasures by releasing water or reducing exports, in order to reducesalinity of Delta water to the level that would exist absent anyproject.5ISSUES PRESENTED BY LITIGANTSState Water Resources Control Board consolidated eight cases inthe First District concerning Water Right Decision 1485. In addi-tion to the Water Board, the Central Valley Project, and the StateWater Project, the litigants included both riparian users in theDelta area and agencies that relied on the water exported from theDelta.6 The projects and the export users generally contended thatthe Water Board did not have the authority to alter the rights of thepermit holders. The Delta users, on the other hand, argued that theBoard should have adopted more stringent water quality standardsto protect the riparian uses of the Delta.7BALANCING TEST FOR BENEFICIAL USESThe court decided that the Board should balance priorities whenadjudging the competing claims between the projects and the exportusers on the one hand and the Delta users on the other hand.The opinion held that, when deciding how to allocate water per-mits the Board no longer needed to rely on the hierarchy of benefi-cial uses employed in previous Board decisions. This approachallows a greater consideration of non-traditional categories of use.The court reasoned that "a .. .global perspective is essential tofulfill the Board's water quality planning obligations."This judicial expansion of the Water Board's power will benefitthose concerned with the Delta environment. However, the rulingalso creates gaps in the Board's enforcement power and presentsprocedural problems. The court admitted that the California Legis-4. Id. at 107-11, 227 Cal. Rptr. at 172-74.5. Id. at 115-16, 148-49, 227 Cal. Rptr. at 177-78, 200.6. Id. at 82, 227 Cal. Rptr. at 161.7. Id. at 112, 227 Cal. Rptr. at 175.8. Id. at 119, 227 Cal. Rptr. at 180.WATER PROJECTS & WILDLIFElature had not provided the Water Board with enforcement powersas broad as the planning powers the court claimed for the Board.9Although federal and state provisions require public agencies tocomply with water quality standards, they do not provide the WaterBoard with the means to enforce those standards.' 0 The court en-deavored to correct this predicament by holding that the Board hasthe power to modify water rights permits to enforce water quality. IHowever, given the long period of fact-finding involved in modify-ing permits, protecting water quality by amending permits is, atbest, a fairly slow and cumbersome method of enforcement.'2In addition, procedural problems created by the court's decisionwill further delay any improvement in water quality. While theFirst Appellate District has affirmed the Board's ability to set stan-dards for both environmental control and water use, the Board stillhas to work out a process by which it can actually perform the bal-ancing test required by the court. Unfortunately, neither the Cali-fornia Water Code nor the opinion here provides the Board withmuch guidance.Adding to the difficulties is the fact that the language of the opin-ion does not indicate how much of the old structure of water rightsshould guide the Board's decisions concerning permits. Principally,the court has given little indication as to what the limits of the bal-ancing test are, or when aggrieved parties should seek a hearing incourt.Granting the Water Board a "global perspective" is not necessar-ily the most efficacious method by which to combine water qualityconcerns with water rights. A better alternative might be the inte-gration of rights approach used in National Audubon Society v. Su-perior Court. 13 In National Audubon Society, the CaliforniaSupreme Court stated that the public trust doctrine should be inte-grated into the established hierarchy of beneficial water uses, andconsidered along with those uses when the Board allocates water9. The court stated: "Enforcement authority-in the form of clear and direct or-ders, injunctive relief and civil penalties-is provided only for unauthorized discharge ofpollutants." (Citations omitted.) Id. at 125, 227 Cal. Rptr. at 184.10. Id. See also CAL. WATER CODE § 13247 (West Supp. 1986) ancd 33 U.S.C.§ 1323 (1985).11. 182 Cal. App. 3d at 127-29, 227 Cal. Rptr. at 185-87.12. The court's choice to postpone the modification of the permits until their re-newal indicates the increased delay that is likely to result from the expansion of theBoard's powers.13. 33 Cal. 3d 419, 658 P.2d 709, 189 Cal. Rptr. 346. cert. denied. 464 U.S. 977(1983).1986]JOURNAL OF ENVIRONMENTAL LAW [Vol. 6:105rights. However, National Audubon Society does not allow consid-eration of the public trust doctrine to completely supersede the es-tablished hierarchy of water uses. State Water Resources ControlBoard cited National Audubon Society for its holding on the exist-ence of the public trust doctrine in water law; however, State WaterResources Control Board's discussion regarding beneficial uses doesnot correspond with the more traditional analysis of NationalAudu-bon Society.As a result of the court imposed balancing test, the Water Boardno longer issues water permits based on a narrow determination ofthe existence of available water for appropriation. The Board mustnow consider a broader set of criteria that may impact current per-mit holders. Relying on this state agency as the forum of first resortprobably reduces to a minimum the delay in granting permits.However, adding to the Water Board's jurisdiction does not expe-dite or improve the permit approval process. Furthermore, whilethe current Board may exercise its greater authority to accomodateenvironmental concerns, different personnel on a future board maychoose a global perspective favoring industrial or municipal uses.FEDERAL CLAIMS OF THE U.S. BUREAU OF RECLAMATIONThe Central Valley Project tried to convince the court that, as anarm of the United States Bureau of Reclamation, the court couldnot hold it to a higher quality standard than that set forth in con-tracts with its customers. However, the court rejected the assertionthat the Water Board lacked the authority to regulate the CentralValley Project because the latter is run by a federal agency. Thecourt's reasoning was logical: given that the Water Board has theauthority to modify water permits to meet water quality standards,the federal authorities have an obligation to comply to the sameextent as other permit holders.The court's holding was not without precedent; claims of federalimmunity had already been denied by prior federal decisions. In1977, the United States Supreme Court, in a suit challenging theBoard's power to attach conditions to water rights, held the UnitedStates Bureau of Reclamation subject to the regulation of stateagencies.' 4 Other federal case law has also held that both federaland state entities must comply with state water quality controls.' 514. California v. United States, 438 U.S. 645 (1977).15. National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982).WATER PROJECTS & WILDLIFENONCONSUMPTIVE USES OF WATEROne of the concerns that encouraged the Water Board to alterwater rights permits is the protection of wildlife., 6 However, sincefish and wildlife do not go through the application process for apermit with articulated property demands, they present specialproblems of evaluation for the Board. Water rights permits imply acertain set of property rights. This implication tends to downplayuses of water not easily attributable to a single consumer or groupof consumers.A balancing test seems a fairly direct way to take noneconomicuses of water into account, but it remains unclear exactly what reg-ulatory scheme provides an appropriate scale to weigh the relativevalues of uses. When balancing uses, water quality standards mayprove difficult to establish. The court in State Water ResourcesControl Board offered no assistance in this regard; it merely heldthat the adequacy of the water quality standard set by the WaterBoard was beyond the scope of the appeal.'7Although the court in National Audubon Society v. SuperiorCourt 18 stated that appropriate rights must give way to noncon-sumptive uses protected by the public trust doctrine, it reached thisconclusion by an analysis that differs somewhat from State WaterResources Control Board. The earlier opinion recognized that theWater Board's role includes protection of uses for the public trust,but also held that California water law is "an integration includingboth the public trust doctrine and the board-administered appropri-ative rights system."' 9 This statement of the public trust doctrine,along with the state plan for appropriative rights, gives the affectedparties some notion of what rights they do possess under their cur-rent permits and, consequently, a better chance to predict the out-come of the next round of Water Board hearings.It is important to note that continuing judicial recognition of ap-propriative rights, as opposed to the balancing of beneficial uses,does not have to result in a lower priority for protection of fish andwildlife. When an application reaches the Water Board for a permitthat will adversely affect the environment, it may modify or reject itto the extent that it would not be the best protection of the publictrust.20 The Board may also reject an appropriation permit where it16. CAL. WATER CODE § 13050(f) (West Supp. 1986).17. 182 Cal. App. 3d at 151, 227 Cal. Rptr. at 202.18. 33 Cal. 3d 419, 658 P.2d 709, 189 Cal. Rptr. 346 (1983).19. Id. at 426, 658 P.2d at 712, 189 Cal. Rptr. at 349.20. Id. at 427, 658 P.2d at 713, 189 Cal. Rptr. at 350.1986]JOURNAL OF ENVIRONMENTAL LAW [Vol. 6:105decides that water has already been put to a beneficial use. 2'Modification of priorities in water use, while imperfect, preservesan administrative process with the advantage of predictability for itsapplicants. Allocating water based on "global perspectives," as de-veloped in State Water Resources Control Board, leaves completediscretion with a particular Board's personnel.RESULTS OF THE DECISIONInitially, the Water Board and environmentalists greeted thecourt's decision in State Water Resources Control Board with enthu-siasm. 22 While this decision undoubtedly expands the power of theWater Board, the long-term results of this expansion remainunclear.In the short run, the 1987 hearings will probably result in equalor greater controls on water quality being written into the renewedpermits. However, the results of the 1987 hearings will not tell uswhether the result of this case has permanently increased theBoard's consideration of uses for the public benefit. Judicial redefi-nition of the role of the Water Board has given the Board so muchdiscretion that water allocation criteria may change with each newappointment to the Board.Janet Gawthrop*21. Id. at n.5.22. One of the attorneys for the Water Resources Control Board described the hold-ing as "a very good decision from the [B]oard's jurisdictional standpoint," while TomasGraff of the Environmental Defense Fund remarked that "it will be very beneficial forSan Francisco Bay and the Delta." Sacramento Bee, May 30, 1986, at B5.* J.D. 1987, UCLA; B.A. 1981, University of Chicago.

Balancing Water Projects and Wildlife: New Authority for the California Water Resources Control Board

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