Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:01-cv-00591-FMA

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189)

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by State Water Resources Control Board establishing new water quality objectives. Briefs and Other Related Documents [2] Waters and Water Courses 133 405k133 Most Cited Cases Appropriation In undertaking to allocate water rights, the State Water Resources Control Board performs an adjudicatory function. [3] Administrative Law and Procedure 784.1 15Ak784.1 Most Cited Cases The trial court is authorized by law to exercise its independent judgment on the evidence when the right or interest affected by the administrative decision is a vested one. [4] Administrative Law and Procedure 15Ak744.1 Most Cited Cases [4] Administrative Law and Procedure 15Ak788 Most Cited Cases 744.1

Court of Appeal, Third District, California. STATE WATER RESOURCES CONTROL BOARD CASES. No. C044714. Feb. 9, 2006. Background: In coordinated water rights proceedings, the Superior Court, Sacramento County, JCCP No. 4118, Roland L. Candee, J., upheld State Water Resources Control Board's Decision 1641 with specified exceptions. Eight notices of appeal and three notices of cross-appeal were filed by Board and other interested parties. Holdings: The Court of Appeal, Robie, J., held that: (1) Board failed to fully implement pulse flow objectives of 1995 Bay-Delta Plan in Board's decision; (2) Board failed to adequately implement southern Sacramento-San Joaquin Delta salinity objectives at three locations; (3) Board gave adequate notice that instream flow requirements on Mokelumne River were to be established; (4) substantial evidence supported Board's decision to authorize Bureau of Reclamation to permit release of stored water from New Melones Reservoir in order to meet salinity standards; (5) Board's implementation environmental impact report (EIR) adequately examined and discussed effects associated with impact of joint points of diversion on water quality in San Joaquin River; and (6) landholders lacked standing to challenge habitat mitigation requirement for addition of encroachment lands to authorized place of use. Affirmed in part, modified in part, and reversed in part. West Headnotes [1] Evidence 48 157k48 Most Cited Cases On appeal from water rights proceeding, Court of Appeal would take judicial notice of decision issued

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[4] Administrative Law and Procedure 796 15Ak796 Most Cited Cases If right affected by decision of administrative agency is vested, decision is reviewed by means of a limited trial de novo; if right is not vested, trial court's scope of review extends only to matters of law appearing on record of administrative proceeding, and accordingly its review of the evidence is limited to a determination of whether it is legally sufficient to sustain decision. [5] Administrative Law and Procedure 15Ak744.1 Most Cited Cases [5] Administrative Law and Procedure 15Ak788 Most Cited Cases 744.1

788

[5] Administrative Law and Procedure 796 15Ak796 Most Cited Cases In a case wherein the trial court is authorized to conduct a limited trial de novo following an administrative decision, the province of the appellate court is analogous to that assumed by it in an ordinary civil appeal: only errors of law are subject to its cognizance, and a factual finding can be overturned only if the evidence received by the trial court, including the record of the administrative

© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189) proceeding, is insufficient as a matter of law to sustain the finding. [6] Administrative Law and Procedure 15Ak683 Most Cited Cases [6] Administrative Law and Procedure 15Ak751 Most Cited Cases 683 15Ak416.1 Most Cited Cases

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[10] Statutes 219(1) 361k219(1) Most Cited Cases On review of an agency's decision, courts must independently judge the text of the statute at issue, taking into account and respecting the agency's interpretation of its meaning, whether embodied in a formal rule or less formal representation. [11] Environmental Law 708 149Ek708 Most Cited Cases In a mandate proceeding to review an agency's decision for compliance with California Environmental Quality Act (CEQA), the appellate court reviews the administrative record to determine whether the agency abused its discretion. West's Ann.Cal.Pub.Res.Code § 21000 et seq. [12] Environmental Law 689 149Ek689 Most Cited Cases In a mandate proceeding to review an agency's decision for compliance with California Environmental Quality Act (CEQA), abuse of discretion by the agency is shown if (1) the agency has not proceeded in a manner required by law, or (2) the determination is not supported by substantial evidence. West's Ann.Cal.Pub.Res.Code § 21000 et seq. [13] Environmental Law 689 149Ek689 Most Cited Cases When the informational requirements of California Environmental Quality Act (CEQA) are not complied with, an agency has failed to proceed in a manner required by law, and has therefore abused its discretion. West's Ann.Cal.Pub.Res.Code § 21000 et seq. [14] Environmental Law 690 149Ek690 Most Cited Cases When an agency fails to proceed as required by California Environmental Quality Act (CEQA), harmless error analysis is inapplicable. West's Ann.Cal.Pub.Res.Code § 21000 et seq. [15] Environmental Law 149Ek577 Most Cited Cases 577

[6] Administrative Law and Procedure 796 15Ak796 Most Cited Cases In a case wherein the trial court is not authorized to conduct a limited trial de novo following an administrative decision, the trial court itself exercises an essentially appellate function in that only errors of law appearing on the administrative record are subject to its cognizance; the trial and appellate courts occupy identical positions with regard to the administrative record, and the function of the appellate court, like that of the trial court, is to determine whether that record is free from legal error. [7] Administrative Law and Procedure 796 15Ak796 Most Cited Cases On appeal from an administrative decision, questions of law are subject to de novo review. [8] Statutes 219(1) 361k219(1) Most Cited Cases On appeal from an administrative decision, the proper interpretation of a statute, and its application to undisputed facts, is a question of law. [9] Administrative Law and Procedure 15Ak413 Most Cited Cases 413

[9] Statutes 219(1) 361k219(1) Most Cited Cases An agency interpretation of the meaning and legal effect of a statute is entitled to consideration and respect by the courts; however, unlike quasilegislative regulations adopted by an agency to which the Legislature has confided the power to "make law," and which, if authorized by the enabling legislation, bind the courts as firmly as statutes themselves, the binding power of an agency's interpretation of a statute or regulation is contextual: its power to persuade is both circumstantial and dependent on the presence or absence of factors that support the merit of the interpretation. [10] Administrative 416.1 Law and Procedure

[15] Environmental Law 690 149Ek690 Most Cited Cases Failure to comply with California Environmental Quality Act (CEQA) subverts the purposes of CEQA if such failure omits material necessary to informed

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189) decisionmaking and informed public participation, and in such cases, the error is prejudicial. West's Ann.Cal.Pub.Res.Code § 21000 et seq. [16] Environmental Law 708 149Ek708 Most Cited Cases In reviewing an agency's decision to certify an environmental impact report (EIR), the appellate court presumes the correctness of the decision; the project opponents thus bear the burden of proving West's that the EIR is legally inadequate. Ann.Cal.Pub.Res.Code § 21000 et seq. [17] Environmental Law 708 149Ek708 Most Cited Cases While appellate court may not substitute its judgment for that of the decision makers in certifying an environmental impact report (EIR), court must ensure strict compliance with procedures and mandates of California Environmental Quality Act (CEQA). West's Ann.Cal.Pub.Res.Code § 21000 et seq. [18] Waters and Water Courses 133 405k133 Most Cited Cases State Water Resources Control Board failed to fully implement pulse flow objectives of 1995 Bay-Delta Plan in Board's water right decision, when it adopted a different flow regime in lieu of the pulse flow objective provided for by that decision; Board's decision to adopt temporary, experimental flow regime that might not provide as much water as the pulse flow objectives of plan resulted in a de facto amendment of the plan without complying with the procedural requirements for amending a water quality control plan. West's Ann.Cal.Water Code § 13247. [19] Administrative Law and Procedure 413 15Ak413 Most Cited Cases The interpretation of a regulation, like the interpretation of a statute, is a question of law, and while an administrative agency's interpretation of its own regulation deserves great weight, the ultimate resolution of such legal questions rests with the courts. [20] Administrative Law and Procedure 413 15Ak413 Most Cited Cases A court generally will not depart from an agency's interpretation of a regulation unless it is clearly erroneous or unauthorized. [21] Environmental Law 190 149Ek190 Most Cited Cases State Water Resources Control Board failed to

adequately implement southern Sacramento-San Joaquin Delta salinity objectives at three locations, as provided in 1995 Bay-Delta Plan, by delaying implementation of objectives at those locations; in delaying implementation, Board effectively amended the 1995 Bay-Delta Plan without complying with procedural requirements for amending a water quality control plan. [22] Waters and Water Courses 145 405k145 Most Cited Cases Substantial evidence supported State Water Resources Control Board's findings, in support of decision to approve petitions by irrigation districts to add upstream location as a place of use and to add fish and wildlife enhancement as a purpose of use in their licenses, that such long-term changes to irrigation districts' licenses would not unreasonably affect or substantially injure any legal user of water; since riparians and appropriators had no right to water stored by irrigation districts, Board properly concluded they could not be injured or unreasonably affected, within the meaning of applicable statutes, by changes in the use of that water. West's Ann.Cal.Water Code § § 1707, 1736. [23] Waters and Water Courses 140 405k140 Most Cited Cases In the absence of a court order actually imposing a physical solution to a water rights dispute, riparian right holders could not claim any right under the physical solution doctrine to water stored upstream. [24] Waters and Water Courses 152(11) 405k152(11) Most Cited Cases Under the "physical solution doctrine," a court adjudicating a water rights dispute may, within limits, exercise its equitable powers to impose a physical solution to achieve a practical allocation of water to competing interests. [25] Waters and Water Courses 145 405k145 Most Cited Cases Changes permitted by State Water Resources Control Board with regard to water right permits that affected the reach of the San Joaquin River did not violate statutes pertaining to diversion of water from that river; licenses of irrigation districts that were the subject of the long-term change petitions were all issued on applications to appropriate water that were filed prior to the date the applicable statutes went into effect. West's Ann.Cal.Water Code § 12230 et seq. [26] Waters and Water Courses 145

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189) 405k145 Most Cited Cases Adequate notice was given in water rights proceeding that instream flow requirements on the Mokelumne River were to be established; State Water Resources Control Board's original notice of public hearing provided notice that Board would consider implementing flow-dependent objectives in 1995 Bay-Delta Plan by allocating responsibility among water right holders to meet water flows and by requiring changes in operations of facilities used in the diversion and use of water, including the license and permit held by water district pertaining to Mokelumne River. [27] Waters and Water Courses 133 405k133 Most Cited Cases Parties who challenged State Water Resources Control Board's action with respect to instream flow requirements on the Mokelumne River in water rights proceeding forfeited that challenge by offering a onesided recitation of the evidence; challenging parties were required to set forth in their brief all the material evidence on the point at issue and not merely their own evidence. [28] Administrative Law and Procedure 750 15Ak750 Most Cited Cases When an appellant challenges an administrative decision as unsupported by substantial evidence in light of the record as a whole, it is the appellant's burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency's decision. [29] Waters and Water Courses 133 405k133 Most Cited Cases In adopting water rights decision, State Water Resources Control Board had no duty to give policy declarations contained in Davis-Dolwig Act, which deals with fish and wildlife and recreation in connection with state water projects, their full force and effect, since substantive provisions of DavisDolwig Act imposed no obligation on Board whatsoever. West's Ann.Cal.Water Code § § 1190011925. [30] Waters and Water Courses 143 405k143 Most Cited Cases State Water Resources Control Board could impose export pumping limits as part of 1995 Bay-Delta Plan, notwithstanding alleged injury to legal users of water, since "no injury" rule applied only as required by statute, and export pumping limits at issue were West's not subject to any such statute. Ann.Cal.Water Code § § 1707, 1736.

[31] Waters and Water Courses 133 405k133 Most Cited Cases Central Valley Project Act statute that protected specified water sources did not support challenges to implementation of 1995 Bay-Delta Plan stemming from decision by State Water Resources Control Board that imposed conditions on Bureau of Reclamation's New Melones Reservoir permits for meeting salinity and flow objectives; Board did not specifically require Bureau to meet Delta flow objectives by releases from New Melones, and, in any event, Bureau chose to release New Melones water for beneficial use within the Delta rather exporting the water outside the area, and challengers to Board's decision could not assert any priority to that water under statute. West's Ann.Cal.Water Code § 11460. [32] Waters and Water Courses 133 405k133 Most Cited Cases Challengers to decision by State Water Resources Control Board, which permitted Bureau of Reclamation to use water from New Melones Reservoir to meet salinity and flow objectives, failed to demonstrate that Board's decision resulted in an unreasonable and unconstitutional use of water. West's Ann.Cal. Const. Art. 10, § 2. [33] Waters and Water Courses 133 405k133 Most Cited Cases For purposes of the constitutional requirement that the unreasonable use or unreasonable method of use of water is to be prevented, what constitutes a reasonable use or method of use of water is a question of fact to be determined according to the West's circumstances in each particular case. Ann.Cal. Const. Art. 10, § 2. [34] Waters and Water Courses 133 405k133 Most Cited Cases In the context of reviewing a decision by the State Water Resources Control Board for substantial evidence, to be substantial, evidence must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials which the law requires in a particular case. [35] Waters and Water Courses 133 405k133 Most Cited Cases Unless it can be demonstrated that actions by the State Water Resources Control Board are not grounded upon any reasonable factual basis, the

© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189) courts should not interfere with its discretion or substitute their discretion for that of the Board. [36] Administrative Law and Procedure 750 15Ak750 Most Cited Cases When an appellant challenges an administrative decision as unsupported by substantial evidence, it is the appellant's burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency's decision. [37] Waters and Water Courses 133 405k133 Most Cited Cases Substantial evidence supported decision by State Water Resources Control Board to authorize Bureau of Reclamation to use its discretion to permit release of stored water from New Melones Reservoir in order to meet salinity standards for water with salinity problems; Board observed that New Melones project was in a location close to site with salinity problems, and that it could conveniently meet the objectives at that site by water releases, which was a reasonable factual basis for Board's decision. [38] Waters and Water Courses 133 405k133 Most Cited Cases Challengers to decision by State Water Resources Control Board failed to show that, as a matter of law, operations approved by Board to meet salinity objectives, including water exports, would injure water users in violation of Delta Protection Act; nothing in Act purported to grant any kind of water right to any particular party, Act provided no clear standard for determining what constituted an "adequate" water supply for users in Delta, and such a determination was a matter within Board's judgment, balancing all relevant factors and all competing interests in the water that flowed through Delta. West's Ann.Cal.Water Code § § 12200-12205. [39] Environmental Law 536 149Ek536 Most Cited Cases Decision by State Water Resources Control Board that failed to implement specified flow objectives resulted in failure to establish minimum flows necessary to achieve salmon-doubling standard that Board had previously established as part of 1995 Bay-Delta Plan, thereby entitling opponents of Board's actions to a writ of mandate. [40] Environmental Law 190 149Ek190 Most Cited Cases Approval by Environmental Protection Agency

(EPA) of 1995 Bay-Delta Plan resulted in that plan supplanting standards promulgated by EPA; federal statute provided that after EPA determined that state standard met requirements of federal law, such standard became the water quality standard for applicable waters. Federal Water Pollution Control Act, § 303(c)(2)(A), (c)(3), 33 U.S.C.A. § 1313(c)(2)(A), (c)(3). [41] Waters and Water Courses 133 405k133 Most Cited Cases State Water Resources Control Board did not violate the public trust doctrine by failing to do more in water rights proceeding to implement a narrative salmon protection objective; it was for Board in its discretion and judgment to balance all competing interests in adopting water quality objectives and formulating a program of implementation to achieve those objectives, and parties challenging Board's actions failed to show that Board acted inconsistently with its duty to protect public trust values so far as consistent with the public interest. [42] Navigable Waters 2 270k2 Most Cited Cases The "public trust doctrine" recognizes that the sovereign owns all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people. [43] Waters and Water Courses 5 405k5 Most Cited Cases Under the public trust doctrine, the state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. [44] Waters and Water Courses 5 405k5 Most Cited Cases Under the public trust doctrine, the protection of recreational and ecological values is among the purposes of the public trust. [45] Waters and Water Courses 133 405k133 Most Cited Cases On appeal in water rights proceeding from decision by State Water Resources Control Board that joint points of diversion would not operate to the injury of any legal user of the water involved by increasing the salinity of water at issue, Court of Appeal would presume that Board's finding was supported by substantial evidence, where challengers to Board's West's decision failed to show otherwise. Ann.Cal.Water Code § 1702.

© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189)

[46] Waters and Water Courses 133 405k133 Most Cited Cases Appropriation State Water Resources Control Board did not improperly defer or delegate the decision in water rights proceeding as to whether joint points of diversion would operate to the injury of agricultural users by lowering water levels in the areas at issue; rather, Board determined that there would be no injury as long as Bureau of Reclamation and Department of Water Resources would ensure that their operations of the joint points of diversion did not cause water levels in the area to recede to a point where agricultural users could not divert water for their agricultural use. [47] Environmental Law 604(3) 149Ek604(3) Most Cited Cases Implementation environmental impact report (EIR) prepared by State Water Resources Control Board adequately examined and discussed the effects associated with the impact of joint points of diversion on water quality in San Joaquin River for purposes of California Environmental Quality Act (CEQA); implementation EIR showed that, with the exception of one alternative, all joint points of diversion alternatives would result in decreased water deliveries compared to existing conditions, which would not increase salt load discharges into San Joaquin River. West's Ann.Cal.Pub.Res.Code § 21000 et seq.; 14 CCR § 15151. See 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 831 et seq.; Cal. Jur. 3d, Pollution and Conservation Laws, § 497 et seq. [48] Environmental Law 604(3) 149Ek604(3) Most Cited Cases Implementation environmental impact report (EIR) prepared by State Water Resources Control Board adequately discussed mitigation impacts of the joint points of diversion on water levels on Delta of Sacramento and San Joaquin Rivers for purposes of California Environmental Quality Act (CEQA); EIR acknowledged that reduced water level could have an adverse effect on water diversion downstream and recommended mitigation measure, and EIR discussed both beneficial and adverse impacts on wildlife, and mitigation measures. West's Ann.Cal.Pub.Res.Code § 21000 et seq.; 14 CCR § 15151. [49] Environmental Law 149Ek665 Most Cited Cases 665

Parties who alleged that State Water Resources Control Board failed to prepare an adequate environmental impact report (EIR) pursuant to California Environmental Quality Act (CEQA) with regard to San Joaquin River agreement did not fail to exhaust their administrative remedies; parties brought to Board's attention their position that the record before the Board did not contain an adequate analysis of the potential impact of the San Joaquin River agreement on return flows, and Board was given an adequate opportunity to address any deficiency in the implementation EIR regarding the return flow issue. West's Ann.Cal.Pub.Res.Code § 21000 et seq.; 14 CCR § 15151. [50] Environmental Law 665 149Ek665 Most Cited Cases Exhaustion of administrative remedies is a jurisdictional prerequisite to maintenance of an action under the California Environmental Quality Act (CEQA). West's Ann.Cal.Pub.Res.Code § 21177. [51] Administrative Law and Procedure 229 15Ak229 Most Cited Cases The purpose of the rule of exhaustion of administrative remedies is to provide an administrative agency with the opportunity to decide matters in its area of expertise prior to judicial review; the decisionmaking body is entitled to learn the contentions of interested parties before litigation is instituted. [52] Environmental Law 604(3) 149Ek604(3) Most Cited Cases Parties challenging sufficiency of environmental impact report (EIR) required under California Environmental Quality Act (CEQA), as prepared by State Water Resources Control Board with regard to impacts on San Joaquin River agreement, failed to show that studies on which EIR was based were clearly inadequate or unsupported based on studies' exclusion of a change in return flows; irrigation districts anticipated that there would be little, if any, change in return flows as a result of their performance of the San Joaquin River agreement, which was a sufficient basis for exclusion of any such West's change from modeling study. Ann.Cal.Pub.Res.Code § 21000 et seq. [53] Environmental Law 149Ek615 Most Cited Cases [53] Environmental Law 149Ek689 Most Cited Cases 615

689

© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:01-cv-00591-FMA

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189) When a challenge is brought to studies on which an environmental impact report (EIR) is based, as required under California Environmental Quality Act (CEQA), the issue is not whether the studies are irrefutable or whether they could have been better; the relevant issue is only whether the studies are sufficiently credible to be considered as part of the total evidence that supports the agency's decision, and a clearly inadequate or unsupported study will be West's entitled to no judicial deference. Ann.Cal.Pub.Res.Code § 21000 et seq. [54] Environmental Law 599 149Ek599 Most Cited Cases The party challenging an environmental impact report (EIR) as required under the California Environmental Quality Act (CEQA) bears the burden of demonstrating that the studies on which the EIR is based are clearly inadequate or unsupported. West's Ann.Cal.Pub.Res.Code § 21000 et seq. [55] Environmental Law 604(3) 149Ek604(3) Most Cited Cases Parties challenging sufficiency of environmental impact report (EIR) required under California Environmental Quality Act (CEQA), which was prepared by State Water Resources Control Board with regard to how San Joaquin River agreement would affect hydropower release schedules for reservoirs affected by the agreement, failed to show that Board's response to hydropower issue was unreasonable under the circumstances; although exact source of the flows was not identified in EIR, Board explained the assumptions of the water sources the irrigation districts would use on which Board based its analysis of potential impacts of San Joaquin River agreement, and further explained that, because the agreement gave districts flexibility in determining where to come up with the water, it was not feasible to analyze all possible operational decisions available to districts. West's Ann.Cal.Pub.Res.Code § 21000 et seq. [56] Waters and Water Courses 144 405k144 Most Cited Cases Bureau of Reclamation was entitled to add fish and wildlife enhancements as an authorized purpose of use in various of Bureau's water permits, notwithstanding water district's assertion that a change in permits would operate to the injury of district as a legal user of water from the Central Valley Project (CVP); since district had no right to CVP water that Congress directed Bureau to put to other uses in the Central Valley Project Improvement

Act, changes in Bureau's permits that would allow Bureau to comply with the Central Valley Project Improvement Act would not interfere with district's rights, and therefore the changes would not operate to the injury of district as a legal user of CVP water. West's Ann.Cal.Water Code § 1702. [57] Waters and Water Courses 144 405k144 Most Cited Cases State Water Resources Control Board properly construed the provisions governing authorized place of use in Bureau of Reclamation's water rights permits within county as the service areas shown on the maps attached to the application for those permits, rather than the entire county. West's Ann.Cal.Water Code § § 1260, 1261. [58] Estoppel 62.2(2) 156k62.2(2) Most Cited Cases State Water Resources Control Board was not estopped from asserting that the provisions governing authorized place of use in Bureau of Reclamation's water rights permits within county were the service areas shown on the maps attached to the application for those permits, rather than the entire county; county failed to demonstrate that it relied to its injury on Board's alleged error. [59] Estoppel 52.15 156k52.15 Most Cited Cases Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he or she must intend that his or her conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he or she must rely upon the conduct to his or her injury. [60] Waters and Water Courses 144 405k144 Most Cited Cases Merger Law did not exceed State Water Resources Control Board's authority under Water Code to limit Central Valley Project (CVP) water delivery within specified region to the places of use described in CVP permits; plain meaning of Merger Law failed to indicate any intent by Legislature to accomplish, by legislative fiat, a change in the authorized place of use in Bureau of Reclamation's CVP permits, or to impose on Water Rights Board a ministerial duty to approve such a change, in circumvention of the usual procedures and requirements of the Water Code. West's Ann.Cal.Water Code § § 37801, 37802,

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189) 37805, 37820. [61] Estoppel 68(2) 156k68(2) Most Cited Cases Doctrine of judicial estoppel did not preclude State Water Resources Control Board from arguing that Merger Law did not exceed Board's authority under Water Code to limit Central Valley Project (CVP) water delivery within specified region to the places of use described in CVP permits, where Board maintained a consistent position throughout the water rights proceedings regarding intent behind Merger Law. [62] Estoppel 68(2) 156k68(2) Most Cited Cases Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding; the doctrine serves to protect the integrity of the judicial process. [63] Estoppel 68(2) 156k68(2) Most Cited Cases The doctrine of judicial estoppel applies when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position; (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. [64] Appeal and Error 878(4) 30k878(4) Most Cited Cases A party who advocates the affirmance of a judgment does not have to file a cross-appeal to assert the judgment was correct on grounds other than the one on which the trial court relied. [65] Waters and Water Courses 144 405k144 Most Cited Cases Landholders in water rights proceeding lacked standing to challenge habitat mitigation requirement for addition of encroachment lands to the authorized place of use, where landholders failed to show that they would suffer an immediate, pecuniary, and substantial injury as a result of decision by State Water Resources Control Board due to a decline in property value. West's Ann.Cal.Water Code § 1126. [66] Appeal and Error 174 30k174 Most Cited Cases The issue of standing may be raised for the first time on appeal.

[67] Mandamus 23(1) 250k23(1) Most Cited Cases Writ of mandate will issue only at the request of one who is beneficially interested in the subject matter of the action. West's Ann.Cal.C.C.P. § 1086. [68] Mandamus 23(1) 250k23(1) Most Cited Cases In determining whether a petitioner seeking a writ of mandate is beneficially interested in the subject matter for purposes of establishing standing, "beneficially interested" generally means the petitioner has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large. West's Ann.Cal.C.C.P. § 1086. [69] Mandamus 23(1) 250k23(1) Most Cited Cases The standard used for determining whether a petitioner seeking a writ of mandate is beneficially interested in the subject matter for purposes of establishing standing is equivalent to the federal "injury in fact" test, which requires a party to prove by a preponderance of the evidence that it has suffered an invasion of a legally protected interest that is both concrete and particularized, and actual or imminent. West's Ann.Cal.C.C.P. § 1086. [70] Waters and Water Courses 133 405k133 Most Cited Cases In the context of water rights proceedings, one is considered "aggrieved" whose rights or interests are injuriously affected by the judgment, and the appellant's interest must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment. [71] Waters and Water Courses 144 405k144 Most Cited Cases In water rights proceeding, State Water Resources Control Board properly excluded expansion lands within the authorized place of use in Bureau of Reclamation's Central Valley Project (CVP) permits, where evidence supporting inclusion of expansion lands included only a programmatic review of the potential environmental impacts of that action. [72] Environmental Law 707 149Ek707 Most Cited Cases Parties in water rights proceeding forfeited their right on appeal to challenge a change environmental

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189) impact report (EIR) required under California Environmental Quality Act (CEQA), where they failed to address trial court's ruling on exhaustion of administrative remedies in their opening appellate briefs. West's Ann.Cal.Pub.Res.Code § 21000 et seq. [73] Appeal and Error 762 30k762 Most Cited Cases Generally, the appellate court will not consider points raised for the first time in an appellant's reply brief, unless good reason is shown for the failure to present them earlier. [74] Environmental Law 708 149Ek708 Most Cited Cases On review of a California Environmental Quality Act (CEQA) action, the appellate court's role is generally the same as that of the trial court and thus, the conclusions of the superior court, and its disposition of the issues are not conclusive on appeal. West's Ann.Cal.Pub.Res.Code § 21000 et seq. [75] Appeal and Error 1078(1) 30k1078(1) Most Cited Cases Issues not raised in an appellant's brief are deemed waived or abandoned. [76] Appeal and Error 900 30k900 Most Cited Cases The most fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct. [77] Administrative Law and Procedure 314 15Ak314 Most Cited Cases The contention that a fair hearing requires a neutral and unbiased decision maker is a fundamental component of a fair adjudication. [78] Administrative Law and Procedure 314 15Ak314 Most Cited Cases Bias and prejudice in administrative proceedings are not implied and must be clearly established; the challenge to the fairness of the adjudicator must set forth concrete facts demonstrating bias or prejudice. [79] Administrative Law and Procedure 314 15Ak314 Most Cited Cases Advance knowledge of adjudicative facts in an administrative hearing that are in dispute does not disqualify the members of an adjudicatory body from adjudicating a dispute; there must be a commitment to a result before the process will be found violative of due process. [80] Administrative Law and Procedure 15Ak314 Most Cited Cases Powers.

314

[80] Waters and Water Courses 133 405k133 Most Cited Cases State Water Resources Control Board staff member's arrangement of and participation in a meeting aimed at developing water quality objectives failed to demonstrate bias or prejudice on the part of Board members five years later, in allocating responsibility for meeting the objectives that were eventually adopted. *199 Baker, Manock & Jensen, John L.B. Smith, Christopher L. Campbell, Glenn J. Holder, and Kathleen A. Meehan, Fresno, for Plaintiffs and Appellants Angela Anderson et al. Nomellini, Grilli & McDaniel, Dante John Nomellini, Dante John Nomellini, Jr.; John Herrick, Stockton; and Thomas M. Zuckerman, for Plaintiffs and Appellants Central Delta Water Agency, R.C. Farms, Inc., Reclamation District No. 2072, Reclamation District No. 2039, ZuckermanMandeville, Inc., and South Delta Water Agency. Law Offices of Reid W. Roberts and Reid W. Roberts, for Plaintiff and Appellant Central San Joaquin Water Conservation District. Richard E. Nosky, Jr., City Attorney, Douglas H. Calkins and John Luebberke, Deputy City Attorneys, for Plaintiff and Appellant City of Stockton. Law Offices of Stephan C. Volker, Stephan C. Volker, San Francisco, Joshua A.H. Harris, Oakland, and Marnie E. Riddle, for Plaintiffs and Appellants Golden Gate Audubon Society, Marin Audubon Society, San Joaquin Audubon Society, California Sportfishing Protection Alliance, and Committee to Save the Mokulumne. Neumiller & Beardslee, Thomas J. Shephard, Sr., and Deeanne Gillick, Stockton, for Plaintiffs and Appellants San Joaquin County and San Joaquin County Flood Control and Water Conservation District. Squire, Sanders & Dempsey, Kevin T. Haroff and Olive Lee Thaler; Sonnenschein Nath & Rosenthal, Kevin T. Haroff, San Francisco, for Plaintiff and Appellant Santa Clara Valley Water District.

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Herum Crabtree Brown, Jeanne M. Zolezzi, Stockton, Karna E. Harrigfeld, and Jennifer L. Spaletta, for Plaintiff and Appellant Stockton East Water District. Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O'Hanlon, Jon D. Rubin, and *200 Andrew P. Tauriainen, Sacramento, for Plaintiff and Appellant Westlands Water District. Bill Lockyer, Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Mark W. Poole and Clifford T. Lee, Deputy Attorneys General, for Defendant and Appellant State Water Resources Control Board. O'Laughlin & Paris, Tim O'Laughlin and William C. Paris, III, Chico, for Real Parties in Interest and Appellants San Joaquin River Group Authority, Oakdale Irrigation District, Modesto Irrigation District, Turlock Irrigation District, Merced Irrigation District, San Joaquin River Exchange Contractors Water Authority, Central California Irrigation District, San Luis Canal Company, Firebaugh Canal Water District, Columbia Canal Company, and Friant Water Users Authority, City and County of San Francisco. Bold, Polisner, Maddow, Nelson & Judson and Carl P.A. Nelson, Walnut Creek, for Real Party in Interest and Respondent Contra Costa Water District. Nancy Saracino, David B. Anderson, and David Sandino, Sacramento, for Real Party in Interest and Respondent Department of Water Resources. Robert C. Helwick, Oakland, Craig S. Spencer, and Fred S. Etheridge, for Real Party in Interest and Respondent East Bay Municipal Utility District. Best Best & Krieger, Gregory K. Wilkinson, Riverside and L. John Nelson IV, for Real Parties in Interest and Appellants State Water Contractors, Kern County Water Agency, and Metropolitan Water District of Southern California. Kronick, Moskovitz, Tiedemann & Girard, Daniel J. O'Hanlon, Jon D. Rubin, and Andrew P. Tauriainen, Sacramento, for Real Parties in Interest and Respondents Westlands Water District, San Luis & Delta-Mendota Water Authority, and San Benito County Water District. ROBIE, J.

The history of California is written on its waters-from the Eel River, to the Salton Sea, to the Colorado River, to Lake Tahoe. But no area has been more critical than the Sacramento and San Joaquin Rivers and their great Delta and San Francisco Bay estuary. Before us are eight appeals and three cross-appeals in seven coordinated cases known collectively as the "SWRCB Cases," Judicial Council Coordinated Proceeding No. 4118. These cases arose out of an omnibus water rights proceeding before the State Water Resources Control Board (the Board) that ostensibly began with notices issued in July 1995, and ostensibly ended in March 2000 with Revised Water Right Decision 1641 (Decision 1641). In truth, however, the water rights proceeding from which these appeals arose is but a small part of a process that has been ongoing for more than four decades to solve the problems of water quality in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary. [FN1] In the water rights proceeding, the Board sought to allocate responsibility among various water rights holders for meeting the flowdependent water quality objectives in the Water Quality Control Plan for the Bay-Delta, which the Board had approved in May 1995 (the 1995 BayDelta Plan). [FN2] As will be seen, *201 Decision 1641 assigned much of that responsibility to the two great water projects in the state--the Central Valley Project (CVP), operated by the United States Bureau of Reclamation (the Bureau), and the State Water Project (SWP), operated by the Department of Water Resources (the Department)--which, in normal water years, export about 30 percent of the water that reaches the Delta. Many of the issues on appeal involve this allocation of responsibility. FN1. We will refer to the entire area as the Bay-Delta. When it is necessary to refer only to the Sacramento-San Joaquin Delta, we will refer to the Delta. (See Wat.Code, § 12220 [setting forth the boundaries of the Sacramento-San Joaquin Delta].) FN2. The Board defined "flow-dependent objectives" as "all objectives that could be met by the flow of water or by changes in the operations of [diversion] facilities, notwithstanding that such objectives also could be met entirely or partially through other means, such as management measures and waste discharge requirements."

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189) The water rights proceeding giving rise to these appeals also dealt with two other long-standing issues: first, a petition filed by the Bureau and the Department in 1995 to use each other's points of diversion in the southern Delta (the joint points of diversion petition), which had its origin in a similar petition filed by the Bureau in 1981; and second, a petition filed by the Bureau in 1985 (and thereafter amended) to change the places of use and conform the purposes of use in many of its CVP permits (the change petition). On the joint points of diversion petition, the Board, in Decision 1641, conditionally granted the Bureau and the Department the right to use each other's pumping plants in the southern Delta to export water to the south and west. On the change petition, the Board took two actions. Decision 1641 approved the Bureau's request to conform the purposes of use in its CVP permits, which had the effect of adding fish and wildlife enhancement as an authorized purpose of use for water appropriated under 14 of those permits. Decision 1641 also approved the Bureau's request to change the places of use in its CVP permits, but only in part. The Board authorized the addition of lands that were previously outside the permits' authorized places of use but were already being served by CVP water, subject to mitigation requirements imposed on the Bureau for all of that land first converted to irrigated agricultural use by the delivery of that water. The Board did not, however, authorize the addition of lands that were not already being served by CVP water but were within the service districts of various CVP contractors. Instead, the Board determined those lands could be added later on a case-by-case basis. Not surprisingly, given that water from the Delta is diverted to meet the needs of two-thirds of the population of California and to irrigate 4.5 million acres, many individuals and entities interested in Delta water appeared before the Board in the water rights proceeding at issue here. Again not surprisingly, not all of those parties were satisfied with the Board's Decision 1641, which is what brings us here today. Originally, four cases challenging different aspects of the Board's decision were coordinated and assigned to Judge Roland L. Candee. Ultimately, seven more cases were added, and three were dismissed, leaving eight. In May 2003, Judge Candee issued his statement of decision in the coordinated cases, upholding Decision 1641 with two exceptions. First, Judge Candee concluded the Board erred when it failed to allocate

responsibility for meeting all of the flow objectives in the 1995 Bay-Delta Plan. [FN3] Second, he concluded the Board *202 erred as to the change petition, when it refused to include all of the lands within the service area of Westlands Water District (Westlands) for authorized place of use in the Bureau's CVP permits without any mitigation requirement. This latter conclusion rested on Judge Candee's determination that a 1965 statute that merged Westlands with another water district [FN4] "effectuated a statutory authorization for the delivery of federal CVP water to all of the lands of the combined ... district." FN3. As we will explain more fully later, a flow objective is a water quality objective based on the amount of water (measured in cubic feet per second) flowing in a watercourse at a given time. FN4. This statute is the Westlands Water District Merger Law (Wat.Code, § § 3780037856), sometimes referred to as the Merger Statute or Merger Law. From the resulting judgments, eight timely notices of appeal and three timely notices of cross-appeal were filed in seven of the coordinated cases. The Board and two other groups of parties challenge Judge Candee's ruling that Decision 1641 failed to implement all of the flow objectives in the 1995 BayDelta Plan. The Board also challenges Judge Candee's ruling that it must expand the authorized place of use in the Bureau's CVP permits to include all of the Westlands service area without any mitigation requirement. Various other parties challenge other aspects of Judge Candee's ruling, in which he upheld the remainder of Decision 1641. These challenges raise numerous issues regarding the law of water rights, as well as issues regarding the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). [FN5] FN5. We will refer to the CEQA statutes in the format of CEQA, section ___. All other statutory references are to the Water Code unless otherwise indicated. Following this introduction, we will begin by setting forth the factual and procedural background of the coordinated cases, starting with brief descriptions of the CVP and SWP and continuing with a summary of the efforts to address the problems of water quality in the Delta, which led to the Board's adoption of the 1995 Bay-Delta Plan. From there, we will summarize

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189) the underlying water rights proceeding in which the Board sought to allocate responsibility for meeting the flow-dependent objectives in the 1995 Bay-Delta Plan among the various water rights holders with interests in water that flows into the Delta. [FN6] We will also describe the joint points of diversion petition and the change petition, the reasons behind those petitions, and the Board's actions on them. We then will turn to the trial court proceedings. FN6. This opinion does not purport to provide a comprehensive summary of either the 1995 Bay-Delta Plan or the water rights proceeding underlying these coordinated cases. Instead, our summary will focus on those aspects of the 1995 Bay-Delta Plan and those aspects of the proceeding that are relevant to the arguments before us on appeal, most of which relate to the San Joaquin River. The discussion section of our opinion will first address arguments on appeal relating to the Board's implementation of the 1995 Bay-Delta Plan in the water rights proceeding. We will then address challenges relating to the joint points of diversion petition. Following this, we will address challenges to the environmental impact report (EIR) the Board prepared for the implementation of the 1995 BayDelta Plan and for the joint points of diversion petition. After addressing challenges relating to the change petition and to the EIR the Board prepared for that petition, we will conclude by addressing challenges to the Board's impartiality. We agree with Judge Candee in most respects, but disagree with him in a few instances. Most significantly, we agree with Judge Candee that the Board erred *203 when it failed to allocate responsibility for meeting all of the flow objectives in the 1995 Bay-Delta Plan. As will be seen, we conclude the Board was not entitled to implement alternate flow objectives agreed to by various interested parties in lieu of the flow objectives actually provided for in the 1995 Bay-Delta Plan. We also conclude that the Board failed to adequately implement certain salinity objectives in the 1995 Bay-Delta Plan and failed to implement the minimum flows necessary to achieve the narrative objective for salmon protection in the 1995 Bay-Delta Plan. Unlike Judge Candee, however, we conclude the Merger Law did not impose a ministerial duty on the Board to augment the authorized place of use in the Bureau's CVP permits to include all of the lands

within the Westlands service area without mitigation. We also reject all of the alternate arguments for upholding this aspect of Judge Candee's decision. Based on our conclusions, we will affirm, modify, and reverse the judgments in the seven coordinated cases as appropriate. FACTUAL AND PROCEDURAL BACKGROUND I The CVP And The SWP Nearly 20 years ago, in an opinion authored by former Presiding Justice John T. Racanelli that is often identified simply as Racanelli, the Court of Appeal, First Appellate District, Division One, addressed an earlier attempt by the Board to adopt water quality objectives for the Delta. (United States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 227 Cal.Rptr. 161.) Rather than reinvent the wheel, we will draw on that opinion extensively, particularly in setting forth the background necessary to understand the issues in these coordinated cases. We begin with Justice Racanelli's description of the two great California water projects--the CVP and the SWP. A The CVP "The history of California water development and distribution is a story of supply and demand. California's critical water problem is not a lack of water but uneven distribution of water resources. The state is endowed with flowing rivers, countless lakes and streams and abundant winter rains and snowfall. But while over 70 percent of the stream flow lies north of Sacramento, nearly 80 percent of the demand for water supplies originates in the southern regions of the state. And because of the semiarid climate, rainfall is at a seasonal low during the summer and fall when the demand for water is greatest; conversely, rainfall and runoff from the northern snowpacks occur in late winter and early spring when user demand is lower. [Citation.] Largely to remedy such seasonal and geographic maldistribution, while simultaneously providing relief from devastating floods and droughts, the California water projects were ultimately conceived and formed. "In 1933 the California Legislature adopted a plan for transfer of surplus water from the Sacramento River and its northern tributaries to the water-

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189) deficient areas of the San Joaquin Valley through construction of a 'Central Valley Project': Shasta Dam, the central feature, to store and regulate waters of the Sacramento River; Friant Dam, on the western edge of the Sierra, to divert water from the San Joaquin River to southern regions of the valley; and various other units designed to transfer water from the Sacramento River system to the San Joaquin Valley. (Wat.Code, § 11100 et seq.) However, *204 due to the pervasive unfavorable economic conditions during the Great Depression, the state turned to the federal government to finance and construct the massive project. "Construction of the CVP began in 1937. It is now one of the world's most extensive water transport systems.[ [FN7]] As noted, Shasta Dam on the upper Sacramento River is the focal point of the CVP. Shasta Dam was completed in 1945 but began storing water and generating electric power in 1944. The waters of the Sacramento River which flow past the Shasta Dam are augmented by additional water supplies brought through a tunnel from the Trinity River and from reservoirs formed by Folsom and Nimbus Dams on the American River. About 30 miles south of Sacramento, the Delta Cross Channel regulates the passage of Sacramento River water through the Delta to the Tracy Pumping Plant. FN7. Appendix A attached to this opinion depicts the major facilities of the CVP. "At Rock Slough, a portion of the water is pumped into the Contra Costa Canal for municipal uses in Contra Costa County. At the Tracy Pumping Plant, the water is lifted nearly 200 feet above sea level into the Delta[-]Mendota Canal and flows 117 miles southward to the Mendota Pool. Here, the waters from the north replace the natural flow of the San Joaquin River. At Friant Dam, the flow of the San Joaquin River is impounded and diverted through the Friant-Kern Canal 152 miles south to the southern reaches of the San Joaquin Valley." (United States v. State Water Resources Control Bd., supra, 182 Cal.App.3d at pp. 98-99, 227 Cal.Rptr. 161, fn. omitted.) In addition to providing water to replace the flow of the San Joaquin River at the Mendota Pool, the Delta-Mendota Canal also supplies water for agricultural users on the west side of the San Joaquin Valley and conveys water for storage in San Luis Reservoir. That reservoir provides water to CVP contractors in the San Joaquin Valley as well as to Santa Clara and San Benito Counties through the Pacheco Tunnel.

Another part of the CVP significant to this proceeding is New Melones Dam on the Stanislaus River, which joins the San Joaquin River near Vernalis. Completed in 1979, New Melones provides flood control and maintains water quality conditions in the Stanislaus and San Joaquin Rivers. Water from New Melones is also delivered to local CVP contractors. The CVP supplies water to over 250 long-term water contractors under contracts with the Bureau. Most of those contractors put the water to agricultural use; as of 1999, CVP water was used to irrigate approximately 19,000 farms covering three million acres. The CVP also supplies water to many urban areas in northern and central California, including Redding, Sacramento, most of Santa Clara County, Stockton, and Fresno. "Under section 8 of the Reclamation Act of 1902 (43 U.S.C. § 383), the ... Bureau is required to comply with state law and to acquire water rights for diversion and storage of water by the CVP." (United States v. State Water Resources Control Bd., supra, 182 Cal.App.3d at p. 106, 227 Cal.Rptr. 161; see also California v. United States (1978) 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 [a state may impose any condition on control, appropriation, use or distribution of water in a federal reclamation project which is not inconsistent with clear congressional directives respecting the project].) Permit applications to appropriate water for the CVP, initially filed on behalf of the state, were assigned *205 to the Bureau when the federal government assumed responsibility for constructing the CVP. (United States v. State Water Resources Control Bd., supra, 182 Cal.App.3d at p. 106, 227 Cal.Rptr. 161.) "The CVP was actually completed and in operation before permits [to appropriate water for the project] were issued: the first permits were issued to the ... Bureau in 1958 ... and the principal permits were issued in 1961...." (Ibid.) B The SWP "Following World War II, state authorities renewed their efforts to develop a comprehensive statewide water plan. In 1951 the Legislature authorized the Feather River and Sacramento-San Joaquin Delta Diversion Project. (§ 11260.) This project--referred to as the SWP--began operations in 1967 under management of the [Department].[ [FN8]] Water from the Feather River is stored behind Oroville Dam

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189) and is released into the Feather River and its eventual confluence with the Sacramento River." (United States v. State Water Resources Control Bd., supra, 182 Cal.App.3d at pp. 99-100, 227 Cal.Rptr. 161, fn. omitted.) In the northern Delta, water is diverted from Barker Slough into the North Bay Aqueduct for municipal use in Solano and Napa Counties. "The water flow continues through the Delta to the Clifton Court Forebay [in the southern Delta] where a portion of it enters the South Bay Aqueduct for delivery to [urban and agricultural areas in Alameda and Santa Clara Counties]. A much greater portion is lifted [at the Harvey O. Banks Delta Pumping Plant] into the California Aqueduct for transport through the San Joaquin Valley [and for use by contractors in the southern San Joaquin Valley] and eventually again lifted by a series of pumping stations over the Tehachapi Mountains for delivery and use in the Southern California region." (Id. at p. 100, 227 Cal.Rptr. 161.) FN8. Appendix B attached to this opinion depicts the major facilities of the SWP. SWP water is delivered to 29 long-term contractors, including agricultural users in the San Joaquin Valley, with Kern County Water Agency having the contract for the greatest amount of water. SWP water transported to Southern California is used primarily for municipal and industrial purposes; Metropolitan Water District of Southern California is the SWP's largest contractor. The permits to appropriate water for operation of the SWP were issued to the Department in 1967. (United States v. State Water Resources Control Bd., supra, 182 Cal.App.3d at p. 106, 227 Cal.Rptr. 161.) II Water Quality In The Delta Obviously, the Delta plays a major role in both of California's great water projects, as water exported by both projects to the San Francisco Bay Area, the San Joaquin Valley, and Southern California is diverted from the southern Delta for transportation to the west and south. Thus, the quality of water in the Delta is important to the projects and their contractors, as well as to other water users in and around the Delta, and to the maintenance and enhancement of fish and wildlife in the Delta. Once again, we turn to Justice Racanelli's opinion: "The Delta generally describes a large lowland area with a labyrinth of natural channels in and around the

confluence of the Sacramento and San Joaquin Rivers. The combined river water passes through *206 the Delta into Suisun Bay and then into San Francisco Bay. In 1959, the legal boundaries of the Delta were fixed by the Legislature. (§ 12220.) The bounded area is roughly triangular, with Sacramento at the north, Vernalis at the south and Pittsburg at the west. "The major factor affecting water quality in the Delta is saltwater intrusion. Delta lands, situated at or below sea level, are constantly subject to ocean tidal action. Salt water entering from San Francisco Bay extends well into the Delta, and intrusion of the saline tidal waters is checked only by the natural barrier formed by fresh water flowing out from the Delta. "But as fresh water was increasingly diverted from the Delta for agricultural, industrial and municipal development, salinity intrusion intensified, particularly during the dry summer months and in years of low precipitation and runoff into the river systems. One of the major purposes of the projects was containment of maximum salinity intrusion into the Delta. By storing waters during periods of heavy flow and releasing water during times of low flow, the freshwater barrier could be maintained at a constant level." (United States v. State Water Resources Control Bd., supra, 182 Cal.App.3d at p. 107, 227 Cal.Rptr. 161.) A Before The 1995 Bay-Delta Plan Efforts to address water quality problems in the Delta date back more than 40 years. In 1961, the State Water Rights Board [FN9] (the Water Rights Board) adopted Decision 990, which approved the Bureau's applications for permits to appropriate water from the Sacramento River and the Delta for the CVP. In that decision, the Water Rights Board recognized the problem of salinity incursion into the Delta, but the Water Rights Board did not attach any specific water quality standards as terms and conditions of the CVP permits. Instead, the Water Rights Board reserved jurisdiction to impose such requirements later, allowing the Bureau, the state, and water users in the Delta an opportunity to reach agreement on salinity control for the Delta in the interim. FN9. The State Water Rights Board, one of the predecessors to the current State Water Resources Control Board, was created by the Legislature in 1956 as a constituent

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39 Cal.Rptr.3d 189 FOR EDUCATIONAL USE ONLY 136 Cal.App.4th 674, 39 Cal.Rptr.3d 189, 06 Cal. Daily Op. Serv. 1218, 2006 Daily Journal D.A.R. 1735 (Cite as: 39 Cal.Rptr.3d 189) entity within the state's Resources Agency, independent from the Department, to serve as a quasi-judicial body with the responsibility for administering water rights. (See Stats.1957, 1st Ex.Sess.1956, ch. 52, § 7, pp. 425-427; Assem. Interim Com. on Water, A Proposed Water Resources Control Board for California: A Staff Study (July 1966) pp. 19-21.) In 1965, various interested parties reached agreement on water quality criteria for the Delta--the so-called Tracy standards. (See United States v. State Water Resources Control Bd., supra, 182 Cal.App.3d at p. 110, 227 Cal.Rptr. 161.) Two years later, the Water Rights Board issued Decision 1275, which approved the Department's applications for permits to appropriate water from the Feather River and the Delta to operate the SWP. In that decision, the Water Rights Board note