Title: Environmental Defense Fund, Inc. v. East Bay Mun. U. Dist. - Court of Appeal, First Dist. Div. 1, Nov. 7, 1975
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 Material Information
Title: Environmental Defense Fund, Inc. v. East Bay Mun. U. Dist. - Court of Appeal, First Dist. Div. 1, Nov. 7, 1975
Physical Description: Book
Language: English
Publisher: 125 California Reporter
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Environmental Defense Fund, Inc. v. East Bay Mun. U. Dist. - Court of Appeal, First Dist. Div. 1, Nov. 7, 1975 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 7
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ENVIRONMENTAL DEFENSE FUND, INC. v. EAST BAY MUN. U. DIST. 601
Cite as. App.. 125 Cal.Rptr. 601


ENVIRONMENTAL DEFENSE FUND,
INC., et al., Plaintiffs and
Appellants,
V.

EAST BAY MUNICIPAL UTILITY DIS-
TRICT et al., Defendants and
Respondents,

County of Sacramento, a political subdivision
of the State of California, Inter-
venor and Appellant.
Civ. 33624.

Court of Appeal, First District,
Division 1.
Nov. 7, 1975.

.\s Modified on Denial of Rehearing
Dec. 5, 1975.
Hearing Granted Feb. 26, 1976.


Several nonprofit corporations dedicat-
ed to protecting and preserving the natural
environment as well as taxpayers and prop-
erty owners within area served by East
lay Municipal Utility District brought suit
for declaratory, mandatory and injunctive
relief after the district contracted with the
United States Bureau of Reclamation for
purchase of water to be diverted from up-
per American River when federal water
reclamation project was completed, in
which the county of Sacramento inter-
vened. The Superior Court, Alameda
County, George Brunn, J. pro ter, sus-
tained general demurrers to the complaint
and plaintiffs and intervenor appealed
from resulting judgments. The Court of
Appeal, Lazarus, J., held that constitutional
restriction against waste or unreasonable
use of water is one that is imposed on all
water users, including those who may have
nontraditional property rights in water,
that preservation of the environment is
among the interests falling within the pro-
tection of such provision, that complaint
alleging that the District violated such pro-
vision by failing to recycle waste water
stated cause of action but that question as
to District's authority to purchase federal
125 Cal.Rptr.-38/2


project water was to be determined under
federal, rather than state law and that as a
matter of state law the District had au-
thority to contract with the United States.
Reversed in part and affirmed in part.


I. Pleading <=218(4)
Where demurrer to first amended
complaint was directed to the pleading as a
whole and did not attack any of its counts
separately, judgment of dismissal could be
affirmed only if none of the counts stated
facts sufficient, if accepted as true, to es-
tablish a legal theory that would entitle
plaintiffs to relief.

2. Waters and Water Courses -37, 182
Flexibility is needed in construing Cal-
ifornia water law so as to keep pace with
the needs and transformations constantly
taking place in a rapidly changing society.
West's Ann.Const. art. 14, 3.

3. Waters and Water Courses -42
Constitutional amendment governing
conservation of water resources and re-
stricting riparian rights is not to be inter-
preted restrictively. West's Ann.Const.
art. 14, 3.

4. Constitutional Law <>12
Whenever possible, constitutional pro-
visions should be interpreted liberally and
realistically.

5. Waters and Water Courses 042
Constitutional provision governing
conservation of water resources is not lim-
ited to disputes involving traditional prop-
erty claims to water between riparian own-
ers and appropriators or between prior and
subsequent appropriators or between com-
peting riparian users, but, rather, it is ex-
pressive of fundamental public policy that
the general welfare requires that all of the
water resources of the state be put to ben-
eficial use to the fullest extent to which
they are capable; hence, environmental
concerns are within the interests coming
within the protection of such section.
West's Ann.Const. art. 14, 3.


-- L1 -- L_ I








125 CALIFORNIA REPORTER


6. Waters and Water Courses -=190
Contention that utility's failure to re-
cycle waste water was an unreasonable
waste of water involved no question of
federal preemption as regards contracts be-
tween utility and United States Bureau of
Reclamation for purchase of water to be
diverted from upper American River when
federal reclamation project was completed;
any interference with utility's purchase of
water from United States would not im-
pinge on any federal interest since recla-
mation of waste water would free more
water for irrigation, which was the pri-
mary purpose for which the federal recla-
mation project was being constructed.
West's Ann.Const. art. 14, 3; West's
Ann.Water Code, 100; 43 U.S.C.A.
616aaa.
7. Pleading e-214(2, 4, 5)
In testing sufficiency of the allega-
tions to support a cause of action the court
must treat the demurrer as admitting all
material facts properly pleaded, but not
mere contentions, deductions or conclusions
of law or fact.

8. Waters and Water Courses ='42, 180
Constitutional restriction against com-
mitting waste is one that is imposed on all
water users, including those who may have
none of the traditional property rights in
water. West's Ann.Const. art. 14, 3.

9. Waters and Water Courses <:=190
Complaint alleging that decision of
East Bay Municipal Utility District, which
has contracted with United States Bureau
of Reclamation for purchase of water to
be diverted from American River, not to
develop water reclamation facilities violat-
ed constitutional provision enjoining waste
or unreasonable use of water stated cause
of action. West's Ann.Const. art. 14, 3;
West's Ann.Water Code, 100.

10. Declaratory Judgment (S-306
Sacramento County was not without
standing to intervene in action challenging
plans of East Bay Municipal Utility Dis-
trict to divert water from the American
River under contract with United States


Bureau of Reclamation; Attorney General
would have been derelict in his duty as
chief law officer of the state had there
been no intervention. West's Ann.Const.
art. 5, 13; West's Ann.Gov.Code,
12600.

II. Courts 9:=97(1)
Federal law governed contract be-
tween East Bay Municipal Utility District
and the United States Bureau of Reclama-
tion for purchase of water to be diverted
from upper American River when federal
water reclamation project was completed;
contention that diversion of water from
the upper river would constitute an unrea-
sonable diversion by destroying opportuni-
ties for multiple use of waters in the lower
river and that such diversion could be
avoided by taking the water from a down-
stream location could not be decided as
matters of state water law. West's Ann.
Const. art. 14, 3.

12. Waters and Water Courses 0190
East Bay Municipal Utility District
had power under state law to contract with
the United States Bureau of Reclamation
for purchase of water to be diverted from
upper American River when federal water
reclamation project was completed. West's
Ann.Public Util.Code, 11501 et seq.,
12721, 12801, 12844.


Thomas J. Graff, Berkeley, Morrison,
Foerster, Holloway, Clinton & Clark, F.
Bruce Dodge, San Francisco, for plaintiffs
and appellants.
John B. Reilley, Gen. Counsel, East Bay
Municipal Utility Dist., Oakland, for de-
fendants and respondents.
John B. Heinrich, County Counsel of
Sacramento County, L. B. Elam, Deputy
County Counsel, Sacramento, for interve-
nor and appellant.
Evelle J. Younger, Atty. Gen., Robert H.
O'Brien, Asst. Atty. Gen., Nicholas C.
Yost, Jan E. Chatten, Deputy Attys. Gen.,
Los Angeles, for State of Cal., amicus cur-
iae in support of appellants.








ENVIRONMENTAL DEFENSE FUND, INC. v. EAST BAY MUN..U. DIST. 603
Cite as. App.. 125 Cal.Rptr. 601


Henderson, Goodwin, Marking & Rogers,
hbert E. Goodwin, Santa Barbara, for
(;oleta County Water Dist., amicus curiae
:i M-upport of appellants.
Kronick, Moskovitz, Tiedemann & Gir-
;rdl. Adolph Moskovitz, Clifford Schulz,
Sacramento, for Assn. of Cal. Water
Agencies, amicus curiae in support of re-
spondents.

:LAZARUS, Associate Justice*
Plaintiffs and appellants in this suit in-
volving the interpretation of the basic wa-
ter law of California are several nonprofit
corporations dedicated to protecting and
preserving the natural environment, joined
Iv three individual plaintiffs. The latter
are taxpayers and property owners within
the area served by respondent East Bay
.Municipal Utility District.1 The utility
district (hereinafter EBMUD) is the sec-
ond largest distributor of water in the
Western United States. The other re-
spondents are its directors and its general
manager. The intervenor, County of Sac-
ramento, has for the past 13 years been in
the process of developing a 2,000-acre
green belt for scenic and recreational pur-
poses along both banks of the lower Amer-
ican River.
Appellants brought this action for de-
claratory, mandatory and injunctive relief
after EBMUD entered into a contract with
the U. S. Bureau of Reclamation for the
purchase of water to be diverted from the
upper American River when the Auburn-
Folsom unit of the Central Valley Project,
now under construction by the federal gov-
ernment, is completed. EBMUD, which
now gets most of its water from the Moke-
lumne River, insists that this supplemental
water supply will be urgently needed by

Retired judge of the superior court sitting
under assignment by the Chairman of the
Judicial Council.
I. Originally, there were four individual plain-
tiffs and appellants. The appeal as to ap-
pellant Gerald M\eral has been dismissed.
Filing briefs as amicus curiae in support of
appellants are the Attorney General of the
State of California and the Goleta County


1985 to meet its anticipated future require-
ments.
Plaintiffs and intervenor contend that
this threatened diversion of water would
substantially diminish the free flow of the
lower American River to the extent that it
would, inter alia, destroy all wildlife in the
area, render it useless for boating, fishing
and other recreational opportunities, and
add to the pollution of San Francisco Bay.
The trial judge sustained general de-
murrers to the first amended complaint
and to the complaint in intervention with-
out leave to amend. This appeal is from
the judgments entered in favor of respond-
ents pursuant to the foregoing orders.
It comes before us, therefore, as a plead-
ing case in which the moving parties assert
that the fundamental law for conservation
of this state's water resources as expressed
in the first two sentences of article XIV,
section 3 of the California Constitution
and its statutory counterpart, Water Code
section 1002 entitles them to the kind of
relief that they are seeking. The constitu-
tional provision, in effect since 1928, is by


its terms self-executing and states: 'Sec.
3. It is hereby declared that because of
the conditions prevailing in this State the
general welfare requires that the water re-
sources of the State be put to beneficial
use to the fullest extent of which they are
capable, and that the waste or unreasona-
ble use or unreasonable method of use of
water be prevented, and that the conserva-
tion of such waters is to be exercised with
a view to the reasonable and beneficial use
thereof in the interest of the people and
for the public welfare. The right to water
or to the use or flow of water in or from
any natural stream or water course in this
State is and shall be limited to such water

Water District. The Association of California
Water Agencies filed an amicus curiae brief
in support of respondents.

2. Article XIV, section 3 of the Constitution
is codified in Water Code section 100, which
consists of the first two sentences in section
3. The remainder of the language used in
section 3 is codified in Water Code section 101.


C A(~ Yo it.
Corso tv








604 125 CALIFORNIA REPORTER

as shall be reasonably required for the ben- Francisco Bay's aquatic environment by
eficial use to be served, and such right means of waste water recycling. Plaintiff
.does not and shall not extend to the waste Save the American River Association is a
or unreasonable use or unreasonable meth- California nonprofit membership corpora-
od of use or unreasonable method of diver- tion, formed to protect the lands adjacent
sion of water. Riparian rights in a stream to the lower American River and the quan-
or water course attach to, but to no more tity and quality of its flow.
than so much of the flow thereof as may "The individual plaintiffs are all taxpay-
be required or used consistently with this ers and either homeowners or renters in
section, for the purposes for which such Alameda or Contra Costa Counties, within
lands are, or may be made adaptable, in the service area of defendant East Bay
view of such reasonable and beneficial Municipal Utilities District (hereinafter
uses; provided, however, that nothing EBMUD). Three are members of plain-
herein contained shall be construed as de- tiff Environmental Defense Fund; all
priving any riparian owner of the reason- have an interest in the preservation of San
able use of water of the stream to which Francisco Bay and are concerned with the
the owner's land is riparian under reason- pollution of the Bay; three have made rec-
able methods of diversion and use, or of rational use of the American River, one
depriving any appropriator of water to especially has kayaked extensively on parts
which the appropriator is lawfully entitled. of the river that would be inundated under
This section shall be self-executing, and present plans.
the Legislature may also enact laws in the "2. The defendants. EBMUD is a util-
furtherance of the policy in this section ity district supplying water to large por-
contained."_ tions of Alameda and Contra Costa Coun-
All parties agree that the erudite trial ties. It also engages, through its Special
judge gave a complete and accurate de- District One, in some treatment of waste
scription of the parties, their pleadings, the water. Defendant Harnett is EBMUD's
factual allegations, and the issues resulting general manager.
therefrom, in the opinion incorporated in "3. Factual allegations. Plaintiffs set
and made part of his decision. Since we forth the facts upon which they rely with
deem it unnecessary to attempt to gild the unusual lucidity. In summarizing them, I
lily, we therefore adopt the following ex- will, for the sake of simplicity, avoid re-
cerpts: peated use of the word 'alleged.' Plain-
"A. The Complaint tiffs charge:
"1. The plaintiffs. Plaintiffs are three "EBMUD supplies water to over a mil-
organizations and four individuals. Plain- lion people in Alameda and Contra Costa
tiff Environmental Defense Fund is a na- Counties, at an average rate of 212 million
tionwide nonprofit membership corpora- gallons a day. EBMUD gets most of the
tion, with many members in Alameda and water from the Mokulumne River to which
Contra Costa Counties. It is a New York it holds rights to 325 million gallons a day.
corporation with an office in Berkeley, EBMUD organized and controls Special
California. Among its purposes is the pro- District Number One which operates a
tection of the natural environment, includ- sewage treatment plant. This plant gives
ing rivers. It has brought numerous suits waste water only 'primary treatment' and
throughout the country and is suing here discharges the effluent into San Francisco
on its behalf as well as on behalf of its Bay.
members. "EBMUD has decided that by 1985 wa-
"Plaintiff Oceanic Society is a Califor- ter from the Mokulumne will no longer be
nia nonprofit corporation. It has a partic- sufficient to meet the anticipated water
ular interest in the preservation of San needs of the people in the district. It be-


__








ENVIRONMENTAL DEFENSE FUND, INC. v. EAST BAY MUN. U. DIST. 605
Cite as. App., 125 Cal.Rptr. 601


.an a wide-ranging search for additional
nater. As part of the search, it signed an
agreement in 1968 with the U. S. Bureau
of Reclamation and other parties. This
agreement looked toward getting water
from the American River and in it EB-
.MUI) agreed to certain conditions if it
should later contract with the Bureau for
water from the Bureau's American River
Division of the Central Valley Project.
one condition makes EBMUD responsible
for a construction of a canal, known as the
liood-Clay Connection, if federal and state
authorities do not build it and if the Bu-
reau finds it to be necessary. The canal is
an integral part of the proposed East Side
Division of the Central Valley Project.
The agreement commits EBMUD to ac-
tively support congressional authorization
and federal construction of the East Side
I)ivision, including the Hood-Clay Connec-
tion.
"This initial agreement was followed by
a contract signed in 1970 between EBMUD
and the Bureau. EBMUD agreed to buy
certain increasing quantities of water as
soon as it becomes available upon comple-
tion of the Auburn-Folsom-South Project
on the American River. The water will be
diverted from the Folsom-South Canal at a
point above the intersection of the canal
and the proposed Hood-Clay Connection
and thus will not be available to flow down
the lower American River.
"In contracting for American River wa-
ter, EBMUD did not recognize its legal
obligation to embark on a waste-water rec-
lamation program. EBMUD has decided
not to develop reclamation facilities to as-
sist in meeting its present or future water
needs. This decision as well as the seeking
of additional water from the American
River are abuses of discretion. The Amer-
ican River water will cost consumers more
than reclaimed water. In addition, EB-
MUD has made 'a major contribution

3. The trial judge found that appellants could
not state a cause of action based on Water
Code section 13500 et seq., and appellants
have apparently conceded on this appeal that
they could not rely on these provisions to sup-
port a claim for relief.


to the likelihood that the Bureau
will (a) complete its construction of the
Auburn-Folsom-South Project and (b) un-
dertake construction of the East Side Divi-
sion.' These two endeavors will have seri-
ous harmful environmental consequences
specified in the complaint, among them the
destruction of the free-flowing north and
middle forks of the American and the re-
duction of flow on the lower American,
with the attendant loss of boating, fishing
and other recreational opportunities. EB-
MUD will also continue to pollute the Bay
with resulting environmental damage.
"4. Causes of Action. These allega-
tions give rise to three asserted causes of
action. The first is that EBMUD's deci-
sion not to develop water reclamation fa-
cilities violates Article XIV, Section 3 of
the California Constitution, Water Code
Section 100 and Water Code Sections
13500 et seq.3 The second is that EB-
MUD's decision to seek water from the
American River violates the same provi-
sions. The third is that the two decisions
in combination contravene these provi-
sions.4
"5. Relief sought. Plaintiffs seek a
declaration that the two decisions are ille-
gal, an order requiring EBMUD to use its
best efforts to rescind the 1970 contract,
an order forbidding EBMUD from issuing
bonds or raising funds to construct facili-
ties for transmission and distribution of
water from the American River, and an
order requiring defendants 'to undertake
such a reclamation program as the proof
will determine is required by law.'
"6. Previous ruling. This court pre-
viously sustained a general demurrer to the
complaint with leave to amend.
"B. The Complaint in Intervention
"Intervenor is the County of Sacramen-
to. The county alleges: The American
River is the second largest tributary of the

4. Since the latter is a hybrid count that exists,
if at all, only if the two prior counts are both
held to state valid causes of action, it need not
be discussed independently here.








606 125 CALIFORI

Sacramento. The lower American, run-
ning 23 miles from Nimbus Dam to the
Sacramento, lies wholly within Sacramento
County. The lower American has long
been used by the public for a variety of
scenic and recreational purposes, including
boating, fishing and swimming.

"Beginning in 1962, the county developed
the American River Parkway Plan. Pur-
suant to it, the county acquired 2000 acres
of land on both sides of the lower Ameri-
can in order to develop a greenbelt for rec-
reational and scenic purposes along the
river. The areas covered by the plan will
become a regional park; they will be im-
proved in ways specified by the complaint
and will cover the equivalent of twelve
square miles. The county has already ex-
pended over six million dollars for land ac-
quisition and improvements under the plan
and expects to spend a million to 15 mil-
lion dollars a year in the future.
"After outlining EBMUD's agreements
with the United States pertaining to the
Auburn-Folsom-South Project, the county
avers that this project will involve the con-
struction of a dam at Auburn above Fol-
som Dam and the construction of a canal,
the Folsom South Canal, above Nimbus
Dam. The Auburn Dam and Folsom
South Canal are presently under construc-
tion and, when completed, will divert water
from the lower American. EBMUD's part
of this diversion will be up to 150,000 acre
feet per year or about 133 million gallons a
day.
"The county then states on information
and belief that EBMUD could have con-
tracted with the United States to get suffi-
cient water at least as efficiently and eco-
nomically from the Sacramento River at or
below its confluence with the lower Ameri-
can.
"The county next pleads a 1972 decision
of the California Water Resources Control
Board (Decision 1400). This decision
made certain specified findings as to opti-
mum and minimum water flows needed in
the lower American for the protection of


GIA REPORTER


fish and wildlife and for recreational pur-
poses. The decision orders certain mini-
mum flows below those necessary to pro-
vide optimum conditions for fish and wild-
life maintenance and recreational purposes
and provided for the reduction of such
flows below those ordered whenever water
supplies are inadequate to meet irrigation
needs. The county avers that as more and
more water is provided for irrigation and
other purposes by the Auburn-Folsom.
South Project, the lower American will not
have sufficient water to maintain fish and
wildlife and to use the river for recreation.
"The county's complaint also quotes from
the Water Board decision, as follows: [1]
'The Bureau contract with East Bay Mu-
nicipal Utility District provides for deliv-
ery of water through the Folsom South
Canal rather than from a downstream lo-
cation. This type of water development,
while satisfying one water requirement,
eliminates the possibility for multiple bene-
ficial uses of the water, and is not sound
management of the water resource. If the
Bureau contract with the District had re-
quired that the District take delivery of
project water from the Sacramento River
or some other downstream location rather
than the Folsom South Canal, an additional
150,000 acre feet of project water supply
(equivalent to about 210 cfs of continuous
supply) would have been available for
stream flow augmentation below Nimbus
for fish and recreational purposes prior to
ultimate use for municipal purposes. To
this extent, the decrease in diversion via
Folsom South Canal resulting from in-
creased minimum flows below Nimbus
Dam would be eliminated if EBMUD's
point of delivery were made from the Sac-
ramento River.'
"Claiming irreparable injury, the county
seeks a declaration that EBMUD 'lacked
legal capacity to enter into' the 1970 con-
tract and an injunction restraining the
defendant from furthering its execution
and either ordering it to seek rescission
through court action or declaring the con-
tract void. .


I -- I








ENVIRONMENTAL DEFENSE FUND, INC. v. EAST BAY MUN. U. DIST. 607
Cite as. App.. 125 Cal.Rptr. 601


('. The first amended complaint
'The first amended complaint, also be-
fore us at this time, repeats by reference
.1l of the charging allegations of the origi-
;:Il complaint and also incorporates the al-
ieations of the complaint in intervention
pertaining to the lower American, its rec-
reational use, the American River Parkway
Ilan, the availability of Sacramento River
water to meet EBMUD needs and the deci-
.ion of the California Water Resources
t'ontrol Board. The amended complaint
.ceks the same relief on the same legal
theories as the original complaint."
To recapitulate-plaintiffs' claims are
essentially that EBMUD's contemplated ac-
tivities come within the purview of the
constitutional ban on misuse of the state's
water resources for the following reasons:
1. EBMUD's decision not to recycle or
reclaim its waste water is an unreasonable
and profligate wasting of water, and that
its existing water supplies are therefore
not being "put to beneficial use to the full-
est extent of which they are capable." If
it husbanded its available water resources,
it would have relatively little need to look
elsewhere.
2. By unreasonably threatening to di-
vert their supplemental supply from an up-
stream rather than a downstream location,
EBMUD will prevent multiple beneficial
use of the waters of the lower American
River for recreational and other purposes,
thereby making it an "unreasonable method
of use or unreasonable method of diversion
of water."
[1] Respondents' demurrer to the first
amended complaint was directed to the
pleading as a whole.5 It did not attack
any of its counts separately. Hence, the
judgment of dismissal can be affirmed only
if none of the counts of the first amended
complaint state facts sufficient, if accepted
as true, to establish a legal theory that

5. The demurrer to the first amended complaint
asserted by respondents reads: "COMES
NOW Defendants, EAST BAY MUNICIPAL
UTILITY DISTRICT, its General Manager,
and each of its Directors named herein, and


would entitle plaintiffs to relief. (Warren
v. Atchison, T. & S. F. Ry. Co. (1971) 19
Cal.App.3d 24, 29, 96 Cal.Rptr. 317; see
also 3 Witkin, Cal.Procedure (2d ed. 1971)
Pleading, 804, p. 2416, and the authorities
cited.)

Initially, however, in order to determine
whether plaintiffs have indeed asserted any
justiciable cause of action, the threshold
question with which we are called upon to
decide is as to the reach and scope of the
constitutional mandate. For, of course,
none of the contemplated acts or omissions
of EBMUD could be said to be a constitu-
tionally prohibited use of the state's water
resources if we are to agree with respond-
ents that this sovereign enactment for the
control of the state's water resources was
meant to apply only to the kind of disputes
over water claims between private parties
that existed at the time article XIV, sec-
tion 3, was adopted.

IS PRESERVATION OF THE ENVI-
RONMENT AMONG THE INTER-
ESTS COMING WITHIN THE
PROTECTION OF ARTICLE XIV,
SECTION 3 OF THE CONSTITU-
TION?
[2-5] Article XIV, section 3, respond-
ents say, has its roots in the law of real
property. They therefore insist that its
evolution is such that it was only meant to
modify the rule followed in the 1926 Her-
minghaus case (Herminghaus v. South.
California Edison Co. (1926) 200 Cal. 81,
252 P. 607) with respect to competing
claims to property rights in water. They
maintain that the fact that all water litiga-
tion since the enactment of article XIV,
section 3, two years later, has so far in-
volved traditional property claims to water
between riparian owners and appropriators,
or between prior and subsequent appropria-

demurs to the First Amended Complaint on
file herein on the ground that said complaint
fails to state facts sufficient to constitute a
cause of action against Defendants."


I --







125 CALIFORNIA REPORTER


tors, or between competing riparian users,
gives support to this view.
Appellants, on the other hand, assert that
the constitutional provision was adopted as
a general welfare measure to conserve Cal-
ifornia's rapidly diminishing water re-
sources for the benefit of the public at
large. It is therefore their contention that
the constitutional mandate must be broadly
construed to encompass all rights to the
beneficial use of the rivers and streams of
this state, including those of sportsmen and
others who are still able to find opportuni-
ties to enjoy outdoor recreation.
The question as to whether or not claims
of the kind here involved come under the
umbrella of article XIV, section 3, is now
therefore squarely before an appellate tri-
bunal for the first time. The fact that it
is one that the courts have not heretofore
been called upon to determine is under-
standable, since it has only been in the last
few years that the population explosion
and our unprecedented urban expansion
have created the environmental problems
that have been responsible for the recent
development of a vast new source of litiga-
tion. We begin our analysis, therefore,
from a historical perspective.
Water has, of course, always under-
standably been regarded by the inhabitants
of this state as one of our most precious
commodities.6 "The conservation of other
natural resources is of importance, but the
conservation of the waters of the state is
of transcendent importance. Its waters are
the very life blood of its existence." (Gin
S. Chow v. City of Santa Barbara (1933)
217 Cal. 673, 702, 22 P.2d 5, 16.)
The historical background of our water
decisions, noted in the appellate reports for
their bulk as well as their quality, has been
admirably summarized in the opinion of

6. Recognition of the vital need for water as a
life-sustaining force is as old as civilization it-
self. "Water is the best of all things." It
was Pindar who said it in 475 B.C.

7. The statute referred to in IIerminghaus
was the so-called Water Commission Act of
1913 (Stats.1913, p. 1012). Under sections


the trial judge; also, in the Supreme
Court's opinion in Joslin v. Marin MuSm.
If'ater Dist. (1967) 67 Cal.2d 132, 136-138,
60 Cal.Rptr. 377, 429 P.2d 889, a case that
will .be more appropriately discussed else-
where in this opinion. Without detailed
discussion here, we observe that the deci-
sions prior to the adoption of the constitu-
tional amendment tended to keep pace with
the changing conditions that came about
with the growth of our state. First, in the
"gold rush" phase of our development, the
courts were concerned mainly with the
claims of those who were diverting water
from the public domain for mining pur-
poses. Then, when agriculture became the
predominant economic activity, the courts
became largely preoccupied with litigation
over riparian rights.
Thus, beginning with Lux v. Haggin
(1886) 69 Cal. 255, 4 P. 919, California
case law in its earlier stage of develop-
ment, adhered to the rule "that in a contro-.
versy between a riparian owner and an ap-
propriator the doctrine of reasonable use
does not apply." (Gin S. Chow v. City of
Santa Barbara, supra, 217 Cal. 673, at p.
696, 22 P.2d 5 at p. 14.) As between ri-
parian owners, each was limited to a rea-
sonable use of the water. But, "As against
an appropriator who seeks to divert water
to nonriparian lands, the riparian owner is
entitled to restrain any diversion which
will deprive him of the customary flow of
water which is or may be beneficial to his
land. He is not limited by any measure of
reasonableness." (Miller & Lux v. Madera
Canal etc. Co. (1909) 155 Cal. 59, 64, 99 P.
502, 511.)
A legislative attempt to curtail riparian
rights was struck down in Herminghaus v.
South. California Edison Co., supra, 200
Cal. 81, 252 P. 607.7 (See Gin S. Chow v.

11 and 42 of that Act appellants asserted the
right to reservoir and store practically un-
limited amounts of San Joaquin River water.
The court held that the exercise of police
powers by the legislative department of this
state would arbitrarily and unreasonably de-
stroy the vested rights of the riparian owners
in private property.- (Herminghaus v. Soulk.


608








ENVIRONMENTAL DEFENSE FUND, INC. v. EAST BAY MUN. U. DIST. 609
Cite as, App., 125 Cal.Rptr. 601


City of Santa Barbara, supra, 217 Cal. 673
at p. 698, 22 P.2d 5.) Immediately follow-
ing the Herminghaus decision the Legisla-
ture in 1927 proposed an amendment to the
Constitution by adding section 3 of article
SI V. This amendment was adopted by the
electors of the state in 1928. (Gin S.
Chow v. City of Santa Barbara, supra, 217
Cal. at p. 699, 22 P.2d 5.) "The purpose of
the amendment was stated to be 'to prevent
the waste of waters of the state resulting
from an interpretation of our law which
permits them to flow unused, unrestrained
and undiminished to the sea', and is an ef-
fort 'un the part of the state, in the inter-
est of the people of the state, to conserve
our waters' without interference with the
beneficial uses to which such waters may
be put by the owners of water rights, in-
cluding riparian owners." (Gin S. Chow
v. City of Santa Barbara, supra at p. 700,
22 P.2d at p. 16.) 8

A more recent comment on the history
of this constitutional provision appears in
Joslin v. Marin Mun. Water Dist., supra,
67 Cal.2d 132, 60 Cal.Rptr. 377, 429 P.2d
889, where that decision states: "The
amendment was generally construed as
applying a rule of reasonable use 'to all
water rights enjoyed or asserted in this
state, whether the same be grounded on the
riparian right or the right, analogous to
the riparian right, of the overlying land
owner, or the percolating water right, or
the appropriative right.' [Citation.]" (Id.

California Edison Co., supra, 200 Cal. 81 at
pp. 117-119, 252 P. 607.) The court did
add, however, "If the state were here assaying
to uphold an effort on its part to work out
impartially, unselfishly and in the interests
of the whole people some general plan or sys-
tem for the equitable adjustment of rights and
.ses in its flowing streams with a view to the
conservation, development, and distribution of
the dynamic forces and generative and fer-
tilizing fructibilities of their waters, it might
well be argued that public policy, public in-
terest, and a most liberal interpretation of
the police powers of the state might rightfully
be invoked in support of such an effort."
(Id. at p. 120, 252 P. at p. 623, emphasis
added.)
125 Cal.Rptr.-39


at pp. 137-138, 60 Cal.Rptr. at p. 381, 429
P.2d at p. 893, emphasis added.)
Joslin went on to state that the effect of
the amendment was epitomized as follows.
in Peabody v. City of Vallejo (1935) 2
Cal.2d 351, 367, 40 P2d 486, 491: DThe
right to the use of water is limited to such
water as shall be reasonably required for
the beneficial use to be served. n2 Such
right does not extend to the waste of wa-
ter.WSuch right does not extend to unrea-
sonable use or unreasonable method of use
or unreasonable method of diversion of
water. )Riparian rights attach to, but to
no more than so much of the flow as may
be required or used consistently with this
section of the Constitution." 9
Immediately following the language
quoted above, the Peabody court had this
to say: "The foregoing mandates are
plain, they are positive, and admit of no
exception. They apply to the use of all
water, under whatever right the use may
be enjoyed. The problem is to apply these
rules in the varying circumstances of cases
as they arise. [] The waters of our
streams are not like land which is static,
can be measured and divided and the divi-
sion remain the same. Water is constantly
shifting, and the supply changes to some
extent every day. A stream supply may be
divided but the product of the division in
no wise remains the same. When the sup-
ply is limited public interest requires that
there be the greatest number of beneficial

8. Gin S. Chow sustained a finding that waters
to be taken and impounded from the Santa
Ynez River by defendants were extraordinary
storm waters, not a part of the usual and
customary flow of the stream, and that plain-
tiffs would therefore not be deprived of any
beneficial use of water to which they were en-
titled.

9. In Peabody, several lower riparian owners
sought to enjoin the City of Vallejo from, as
an appropriator, damming the waters of a
creek and diverting them to be used for mu-
nicipal purposes. Plaintiffs asserted a right
to have all of the waters flow without inter-
ruption.


--------~-~I I








125 CALIFORNIA REPORTER


uses which the supply can yield." (Pea-
body v. City of Vallejo, supra, 2 Cal.2d 351
at pp. 367-368, 40 P.2d 486 at p. 491, em-
phasis added.)
This language is clear and can hardly be
misunderstood. The court in Peabody re-
versed a judgment of the trial court grant-
ing plaintiffs an absolute injunction, how-
ever, holding that other forms of relief
were available and would be adequate, and
directing the trial court on remand to de-
termine the rights of the parties "in har-
mony with the new constitutional policy of
conservation of waters .." (Pea-
body v. City of Vallejo, supra, 2 Cal.2d 351
at p. 383, 40 P.2d at p. 499.)
The Supreme Court reiterated the propo-
sition that article XIV applies to all users
of water four years later in Meridian, Ltd.
v. San Francisco (1939) 13 Cal.2d 424, 447,
90 P.2d 537.
It seems that the real lesson to be
gleaned from our water law history, there-
fore, is that the courts have generally been
acutely aware of the necessity for flexibili-
ty in construing the law to keep pace with
the needs and transformations constantly
taking place in our rapidly changing socie-
ty.
The alert trial judge undoubtedly had
this in mind when he mentioned in his
opinion that he had "no great difficulty in
saying that what is 'reasonable' under Arti-
cle XIV, Section 3, is not fixed and that
today a determination of reasonableness
should properly include, when appropriate
under the facts, environmental factors such
as the recreational, fish and wildlife uses
of a river. Court decisions applying Arti-
cle XIV, Section 3, do not preclude such a
view and this appears to be the interpreta-
tion of the State Water Resources Control
Board, an interpretation entitled to consid-
erable respect. See Decisions 1379 and
1400." (Emphasis added.)
But, he reasoned, since no cases have so
far reached the appellate level to which ar-
ticle XIV, section 3, has been deemed to be
applicable which did not involve competing


claims to property rights in water, it would
be presumptuous for a trial judge to broad-
ly construe it to apply to other water dis-
putes of a kind not heretofore sanctioned
by case law.
He went on to say, however: "It can, of
course, he argued that the question has not
been squarely presented to the appellate
courts, that past litigation has involved
competing water rights claims and that,
therefore, the courts have not had to de-
cide whether the constitutional provision
has any scope of operation beyond the res-
olution of such claims. [fI] This argu-
went may be available to an appellate
court. However, as I have tried to indi-
cate, the provision throughout its history
has been viewed as dealing with asserted
water rights and, specifically, as extending
the rule of reasonableness to contests be-
tween riparian owners and appropriators.
I have no basis for now turning the urovi-
sion into something very different." (Em-
phasis added.)
The question as to whether or not article
XIV, section 3, may be properly interpret-
ed to encompass claims based upon envi-
ronmental factors such as those involved
here is therefore one of first instance that
it is now the responsibility of this court to
determine.
We begin by taking a closer look at the
language of article XIV, section 3, having
in mind the fundamental rule of interpreta-
tion that "constitutions, like laws, must be
construed that full force and effect shall
be given to every portion thereof. The le-
gal intendment is that each and every sen-
tence and clause has been inserted for
some useful purpose, and when rightly un-
derstood has some practical operation."
(People v. Zolotoff (1941) 48 Cal.App.2d
360, 364, 119 P.2d 745, 747.)
Thus viewed, it would appear from the
text of the amendment itself that it was
not intended to be interpreted restrictively.
Otherwise, as pointed out by the Attorney
General in his amicus curiae brief, the
first two sentences focusing on the "use"
of water would appear to be superfluous-


610


? --- ~-I- ---- I I


-rr~wi









ENVIRONMENTAL DEFENSE FUND, INC. v. EAST BAY MUN. U. DIST. 611
Cite as, App.. 125 Cal.Rptr. 601


Construction we are admonished to
.i.dl.10 Furthermore, these are'the two
-citences that are incorporated alone in
hle Water Code as section 100, indicating
that they are to be treated and considered
separate and apart from the remainder.
Riparian rights are mentioned only when
%%c come to the third sentence, the lan-
iiuage of which is isolated from the rest of
the text to become section 101 of the Wa-
ter Code. This dichotomy appears to be
clear also from the very title given to the
;ncndnment: "Conservation of. water re-
'ources; restriction of riparian rights."
We must therefore construe this division
.ti indicating that the first two sentences
arc to be applied without qualification to
every right to the use of the diminishing
water resources of this state.
Control of the use of all waters of the
-tate for the benefit of the public at large
is also spelled out in other provisions of
the Water Code itself. For example, un-
der the same heading, "General State Poli-
cy", section 104 provides, "It is hereby de-
clared that the people of the State have a
l)aramount interest in the use of all the
water of the State and that the State shall
determine what water of the State, surface
and underground, can be converted to pub-
lic use or controlled for public protection."
A similar expression is found in section
105, which states: "It is hereby declared
that the protection of the public interest in
the development of the water resources of
the State is of vital concern to the people
of the State and that the State shall deter-

10. Article XIV, section 3, has been heretofore
set forth in its entirety at pages 3 and 4. As
a matter of convenience, however, we again
set forth the first two sentences. "It is here-
by declared that because of the conditions
prevailing in this State the general welfare re-
quires 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 tlhe
conservation of such waters is to be exercised
with a view to the reasonable and beneficial
use thereof in the interest of the people and
for the public welfare. The right to water
or to the use or flow of water in or from any


mine in what way the water of the State,
both surface and underground, should be
developed for the greatest public benefit."
(Emphasis added.)
Moreover, the Legislature definitely rec-
ognized that the amendment was intended
to encompass a broad goal of conservation
when it adopted the California Wild and
Scenic Rivers Act. (See Pub.Resources
Code, 5093.50 et seq.11 in which it de-
clared it to be the policy of this state to
permit certain waters to remain in their
free flowing primitive state.) Section
5093.50 of the Public Resources Code thus
states in part: "It is the policy of the
State of California that certain rivers
which possess extraordinary scenic, recrea-
tional, fishery or wildlife values, shall be
preserved in their free-flowing state, to-
gether with their immediate environments,
for the benefit and enjoyment of the peo-
ple of the state. The Legislature declares
that such use of these rivers is the highest
and most beneficial use and is a reasonable
and beneficial use of water within the
meaning of Section 3 of Article XIV of
the State Constitution." (Emphasis add-
ed.)
The Legislature has thus interpreted ar-
ticle XIV, section 3, of the Constitution as
extending the rule of reasonableness of use
to include a beneficial public use not here-
tofore specifically mentioned in the deci-
sions. Furthermore, the provisions of the
California Wild and Scenic Rivers Act ob-
viously have nothing to do with claims to
property rights in waters.12

natural stream or water course in this State
is and shall be limited to such water as shall
be reasonably required for the beneficial use to
be served, and such right does not and shall
not extend to the waste or unreasonable use or
unreasonable method of use or unreasonable
method of diversion of water."
II. A section of the American River and the
lower American River were designated as com-
ponents of the system. (See Pub.Resources
Code, 5093.54, subd. e.)
12. Earlier, the Legislature dramatically mani-
fested its anxiety over the threat of environ-
mental blight by the passage of the Environ-
mental Quality Act of 1970 (see Pub.Re-


----~- _, 111








125 CALIFORNIA REPORTER


It is well settled that "When a constitu-
tional provision is susceptible of more than
one reasonable interpretation, an interpre-
tation placed upon it by the Legislature is
of persuasive significance." '(Miro v. Su-
perior Court (1970) 5 Cal.App.3d 87, 99, 84
Cal.Rptr. 874, 881; Lundberg v. County of
Alameda (1956) 46 Cal.2d 644, 652, 298 P.
2d 1.)
Turning again to case law, we note that
Joslin v. Marin Mun. Water Dist., supra,
67 Cal.2d 132, 60 Cal.Rptr. 377, 429 P.2d
889, seems to support rather than to pre-
clude a broad interpretation of the amend-
ment. In that connection, the court stated,
"Although, as we have said, what is a rea-
sonable use of water depends on the cir-
cumstances of each case, such an inquiry
cannot be resolved in vacuo isolated from
state-wide considerations of transcendent
importance. Paramount among these we
see the ever increasing need for the con-
servation of water in this state, an inescap-
able reality of life quite apart from its ex-
press recognition in the 1928 amendment."
(Id. at p. 140, 60 Cal.Rptr. at p. 382, 429
P.2d at p. 894.)
The trial court in mentioning that Joslin
is the most recent decision of the Supreme
Court which discusses the amendment also
added that it "sets forth the view which
our Supreme Court has consistently taken."
Joslin, however, was decided prior to the
landmark decision of the United States Su-
preme Court in Sierra Club v. Morton
(1971) 405 U.S. 727, 92 S.Ct. 1361, 31 L.
Ed.2d 636. Although the court reached the
conclusion in Morton that the petitioner
had no standing to sue since it had assert-
ed no individualized harm to itself or its
members, it nevertheless recognized that:

sources Code, 21000 et seq.) which, much
like the National Environmental Policy Act
of 1969 (42 U.S.C.A., 4321-4347) begins
by declaring that "The maintenance of a
quality environment for the people of this
state now and in the future is a matter of
statewide concern." (Pub.Resources Code,
21000, subd. a.) This Act requires "gov-
ernmental agencies at all levels to develop
standards and procedures necessary to protect


."Aesthetic and environmental well-being,
like economic well-being, are important in-
gredients of the quality of life in our soci-
ety, and the fact that particular environ-
mental interests are shared by the many
rather than the few does not make them
less deserving of legal protection through
the judicial process." (Id. at p. 734, 92 S.
rt. at p. 1366.)

Some time ago, our Supreme Court in
Meridian, Ltd. v. San Francisco, supra, 13
Cal.2d 424, 90 P.2d 537, also made it clear
that the actual range and effect of the
amendment could be established only as
cases are presented to the courts. There is
was clairvoyantly stated, 'Ob-
viously, it is impossible for this court or
any court to cover, in three or four deci-
sions, the entire range of the effect of the
amendment upon all water controversies
that may arise in this state. The full
scope of the new constitutional provision
can be determined only after a large num-
ber of cases presenting different conditions
shall have been decided.'" (Id. at p. 444,
90 P.2d at p. 547.)

It is now a well established principle that
whenever possible constitutional provisions
should be interpreted liberally and realisti-
cally "to meet changing conditions and the
growing needs of the people." (Miro v.
Superior Court, supra, 5 Cal.App.3d 87 at
p. 98, 84 Cal.Rptr. 874 at p. 880; see also
People v. Western Air Lines, Inc. (1954)
42 Cal.2d 621, 635, 268 P.2d 723; Los An-
geles Met. Transit Authority v. Public
Util. Com. (1963) 59 Cal.2d 863, 31 Cal.
Rptr. 463, 382 P.2d 583; Housing Authority
v. Peden (1963) 212 Cal.App.2d 276, 280,
28 Cal.Rptr. 11.)

environmental quality." (Pub.Resources
Code, 21001, subd. f.) This is to include
"enjoyment of aesthetic, natural, scenic, and
historical environmental qualities," (Pub.
Resources Code, 21001, subd. b) and to
prevent such consequences as "the elimination
of fish or wildlife species due to man's ac-
tivities, (Pub.Resources Code,
21001, subd. c.)


612


A


I I -rlICII' I __ Ic--' c~qPI








ENVIRONMENTAL DEFENSE FUND, INC. v. EAST BAY MUN. U. DIST. 613
Cite as, App., 125 Cal.Rptr. 601


This salutary rule has perhaps been most
aptly explained in the following language
quoted by the Supreme Court with approv-
al in People v. Western Air Lines, supra,
42 Cal.2d 621 at page 635, 268 P.2d 723 at
page 731: .. A constitution is in-
tended to meet and be applied to any con-
ditions and circumstances as they arise in
the course of the progress of the communi-
ty. The terms and provisions of constitu-
tions are constantly expanded and enlarged
by construction to meet the advancing af-
fairs of men. While the powers granted
thereby do not change, they do apply in
different periods to all things to which
they are in their nature applicable.

We therefore have no difficulty in hold-
ing that article XIV, section 3, can only
reasonably be interpreted as an unqualified
expression of fundamental policy by the
people of California that the general wel-
fare requires that all of "the water re-
sources of the State be put to beneficial
use to the fullest extent of which they are
capable."

IS RECYCLING WASTE WATER A
TECHNIQUE THAT MAY BE RE-
QUIRED UNDER THE AMEND-
MENT UPON A PROPER SHOW-
ING AS A METHOD OF PRE-
VENTING WASTE OR THE UN-
REASONABLE USE OF WATER?
[6-9] In light of the foregoing, we
consider here separately the merits of the
allegations upon which appellants' first
cause of action is based. This is predicat-
ed on EBMUD's determination not to un-
dert the development of facilities for

'13. The government contract provides for such
a situation in article 3, subdivision b, which
states "(b) If at any time or times during the
term of this contract the District determines
that its water needs for the remainder of said
term are for quantities different from those
set forth in subdivision (a) of this article
by agreement the parties may decrease or, to
the extent that water is available, as de-
termined by the Contracting Officer, increase
the quantities of water to be delivered by the
United States."


recycling or reclaiming the water now in
use in its system. It is alleged that this
would be a means of augmenting existing
resources and cutting down materially on
any need for additional water supplies
from other sources, including the Ameri-
can River.1 Hence, they say, this is an
unreasonable waste, and a failure to put
available water resources to the fullest
beneficial use of which they are capable,
contrary to the requirements of the amend-
ment and its statutory counterpart, Water
Code section 100.
Plaintiffs' first cause of action is there-
fore an independent cause of action, not
based on the American River contracts,
and the question as to federal preemption
elsewhere involved is not present here.
The demurrer to this count was sus-
tained after the trial judge, prompted by
what he acknowledged to be judicial re-
straint, had ruled that the constitutional
ambit should be limited by historical
precedent to the resolution of competing
claims to property rights in water.
In testing the sufficiency of the allega-
tions to support a cause of action we must,
of course, treat the demurrer as admitting
all material facts properly pleaded, but not
mere contentions, deductions, or conclu-
sions of law or fact. (Daar v. Yellow Cab
Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr.
724, 433 P.2d 732.) Public records and
other matters that may be judicially noticed
will also be considered. (Id. at p. 716;
Evid.Code, 459.)
We observe at the outset that appellants
are not contending that the failure of EB-
MUD to adopt a program for recycling its

Also, the primary purpose for which the
Auburn-Folsom South Unit was constructed
as part of the Central Valley Project was to
increase the supply of water available for
irrigation and other beneficial uses in the
central valleys. (43 U.S.C.A., 616aaa.)
Therefore, it cannot be said that any inter-
ference with EBMUD's purchase of water
from the United States would impinge upon
any federal interests since obviously more
water would then be available for irrigation
and use in the central valleys.







125 CALIFORNIA REPORTER


water is ipso facto a violation of article
XIV, section 3. What they do say is sim-
ply that they have set forth sufficient facts
in their pleading to entitle them to proceed
to trial so that the trial court can deter-
mine in the first instance whether or not
its present water resources are indeed
being "put to beneficial use to the fullest
extent of which they are capable."

Patently, article XIV, section 3 mandates
that "the waste or unreasonable use or un-
reasonable method of use of water be pre-
vented, and that the conservation of such
waters is to be exercised with a view to
the reasonable and beneficial use thereof
in the interest of the people and for the
public welfare." (Emphasis added.) And
the Supreme Court made it abundantly
clear in Meridian, Ltd. v. San Francisco,
supra, 13 Cal.2d 424, 90 P.2d 537, that the
constitutional restriction against commit-
ting waste is one that is imposed on all
water users, including those who may have
none of the traditional property rights in
water. "ie duty not to commit waste is
enjoined on all users of water. An accept-
ed definition of the term 'waste', as applied
to the use of water, may be said to be: 'to
use needlessly or without valuable result;
to employ prodigally or without any con-
siderable return or effect, and to use with-
out serving a purpose.' (Webster's New
International Dict., 2d ed.) The term is
necessarily relative." (Id. at p. 447, 90 P.
2d at p. 548.)

14. For an excellent current discussion of the
growing need for water reclamation for both
conservation purposes and environmental pro-
tection, see the forward to Bulletin No. 189,
Waste Water Reclamation, State of the Art,
March 1973, by William R. Gianello, then
Director of the California Department of
Water Resources, from which we have ex-
cerpted the following: "The conservation of
California's water, and the closely related
task of environmental preservation, require
efficient use of our water resources. Through
prevention of wasteful practices during the
initial use of water, and careful treatment of
waste water as it is used and returned to
rivers and streams, we can partially achieve
this goal. However, an even more pronounced


The recycling or reclamation of water as
a conservation measure is, of course, a rel-
atively new concept. Its technological
progress in recent years, however, has been
of such significance that the Declaration
of Policy in California's Water Reclama-
tion Law (Wat.Code, 13500 et seq.) now
includes the following Legislative finding:
13511. The Legislature finds and de-
clares that a substantial portion of the fu-
ture water requirements of this state may
be economically met by beneficial use of
reclaimed water. [ff] The Legislature
further finds and declares that the utiliza-
tion of reclaimed water by local communi-
ties for domestic, agricultural, industrial,
recreational, and fish and wildlife purposes
will contribute to the peace, health, safety
and welfare of the people of the state.
Use of reclaimed water constitutes the de-
velopment of 'new basic water supplies' as
that term is used in Chapter 5 (commenc-
ing with Section 12880) of Part 6 of Divi-
sion 6." 14

More than forty years ago the Supreme
Court, with considerable foresight, had this
to say about the changing standards for
determining whether water is being put to
a beneficial use under article XIV, section
3: "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, be-

step towards true environmental protection
and water conservation will result from in-
creased reclamation of waste water-the treat-
ment and reuse of our municipal, industrial.
and agricultural water supplies. [] Increased
reclamation of waste water can mean fewer
pollutants discharged to receiving waters. Re-
use of once-used water will augment needed
supplemental supplies and reduce the necessity
for further importation of water in some parts
of California." (P. 16.) This bulletin also
mentions that among the urgent reasons
for reclaiming waste water are to "Augment
natural water supplies, thus reducing the need
for development of new sources and imports
of water, and permitting rivers to remain in
their natural state."


614








ENVIRONMENTAL DEFENSE FUND, INC. v. EAST BAY MUN. U. DIST. 615
Cite as, App.. 125 CaI.Rptr. 601


come a waste of water at a later time."
(Tutlare Dist. v. Lindsay-Strathmore Dist.
11935) 3 Cal.2d 489, 567, 45 P.2d 972,
1007.)
Appellants seek only to be permitted to
proceed to trial in order that the trial
court may determine from the evidence to
he presented by both parties whether re-
spondent, in refusing to reclaim its waste
water, is making a reasonable or unreason-
able use of its existing water resources in
the face of today's changing conditions.
"Likewise, what is a reasonable or unrea-
sonable use of water is a judicial question
to be determined in the first instance by
the trial court. There would seem to be no
more difficulty in ascertaining what is a
reasonable use of water than there is in
determining probable cause, reasonable
doubt, reasonable diligence, preponderance
of evidence, a rate that is just and reason-
able, public convenience and necessity, and
numerous other problems which in their
nature are not subject to precise definition
lut which tribunals exercising judicial
functions must determine." (Gin S. Chow
v. City of Santa Barbara, supra, 217 Cal.
673 at p. 706, 22 P.2d 5 at p. 18; see also
Joslin v. Marin Mun. Water Dist., supra,
67 Cal.2d 132 at p. 139.)
Or, as more succinctly put recently in
the loslin case, "What is a reasonable use
or method of use of water is a question of
fact to be determined according to the cir-
cumstances in each particular case." (Jos-
lin v. Marin Mun. Water Dist., supra, 67
Cal.2d 132 at p. 139, 60 Cal.Rptr. 377 at p.
382, 429 P.2d 889 at p. 894.)
Which brings us to City of Pasadena v.
City of Alhambra (1949) 33 Cal.2d 908,
207 P.2d 17 (cert. den. 339 U.S. 937, 70 S.
Ct. 671, 94 L.Ed. 1354), a case which re-
spondents would have us construe as decid-
ing as a matter of law that the failure to
reclaim water may not be deemed to be in
violation of article XIV, section 3.
Among the numerous contentions that
were there considered by the court was one
involving the question as to whether Pasa-
dena's failure to recapture certain storm


waters was a violation of article .XIV, sec-
tion 3. The point was of such relative un-
importance that it could be disposed of
with these terse comments: "The failure of
the city of Pasadena to capture and return
to the underground basin storm waters and
waters used to flush streets, fight fires,
and flow sewage does not, as claimed by
appellant, constitute waste in violation of
section 3 of article XIV of the California
Constitution. Storm drains used for flood
control carried some water outside the
area, but this does not mean it was wasted,
and there is no evidence that there was
any waste in connection with the use of
water in ordinary and necessary municipal
activities." (City of Pasadena v. City of
Alhambra, supra, 33 Cal.2d 908 at pp. 934-
935, 207 P.2d 17 at p. 33, emphasis added.)
This cannot be read as a determination
by the court that reclamation is not encom-
passed by article XIV, section 3; on the
contrary it appears that the court merely
reached the conclusion that it did on the
factual record before it, and the absence of
evidence to support a contrary conclusion.
In any event, in the light of the remarka-
ble changes in technology regarding recla-
mation since 1949, and the current state
policy in favor of encouraging reclamation
embodied in the Water Reclamation Law
(Wat.Code, 13500 et seq.), Pasadena is
not dispositive of this case.
It is our conclusion-that appellants have
therefore raised a justiciable issue in con-
nection with their first cause of action. It
may very well be, however, that at a trial
they may not be able to offer sufficient ev-
idence to demonstrate that recycling or re-
claiming water has yet become an economi-
cally practical or feasible method of pre-
venting waste in connection-with respon-
dent EBMUD's operations.
Elsewhere we pointed out that the judg-
ment of dismissal in this case was based
upon a general demurrer attacking the
complaint as a whole. Since we now hold
that there was at least one count in the
complaint that was not vulnerable to objec-
tion, the demurrer should have been over-








125 CALIFORNIA REPORTER


ruled. (Shook v. Pearson (1950) 99 Cal.
App.2d 348, 221 P.2d 757; also see the au-
thorities heretofore cited.) The judgment
of dismissal as to plaintiffs' complaint
must therefore be dismissed.
This must not be construed, however, as
our approval of appellants' right to relief
on any theory other than that set forth in
their first alleged cause of action. Our
views in that regard will be apparent, how-
ever, from the following discussion of the
trial court's ruling in connection with the
trial court's order sustaining a demurrer to
Sacramento's complaint in intervention.

DID THE TRIAL COURT RULE
PROPERLY THAT EBMUD'S AU-
THORITY TO PURCHASE FED-
ERAL PROJECT WATER MUST
BE DETERMINED UNDER FED-
ERAL LAW?
[10-12] The single cause of action as-
serted by intervenor and appellant County
of Sacramento (as were the remaining
causes of action in appellant's complaint)
is based on EBMUD's future plans to di-
vert water from the American River under
contracts with the U.S. Bureau of Recla-
mation. Respondents' contention that Sac-
ramento County lacked standing to inter-
vene in this case was properly rejected by
the trial court. Also, the Attorney General
was merely performing his duty as chief
law officer of the state.in filing an amicus
curiae brief in support of the intervenor.
(Cal.Const., art. V, 13; Gov.Code,
12600.)
The complaint in intervention alleges
that taking water from the Folsom South
Canal above Clay will destroy opportunities
for multiple use of the waters in the lower
American, and is therefore an unreasona-
ble diversion that could be easily avoided
by taking the water from a downstream lo-
cation.
The trial judge reached the conclusion
however that state law does not apply to
the situation at all. "The factual setting
for this question is that EBMUD has con-
tracted with the U.S. Bureau of Reclama-


tion to buy water in the future from a wa-
ter project that the Bureau is in the proc-
ess of constructing. The project has been
authorized by Congress; the Bureau has
obtained a permit for it from the State
Water Resources Control Board; the le-
gality of the project itself is not under at-
tack here."
He therefore "somewhat reluctantly"
agreed with the respondents that "under a
line of U.S. Supreme Court decisions that
include Ivanhoe Irrigation District v.
McCracken (1958) 357 U.S. 275, 78 S.Ct.
1174, 2 L.Ed.2d 1313; Dugan v. Rank
(1963) 372 U.S. 609, 83 S.Ct. 999, 10 L.
Ed.2d 15 and City of Fresno v. California
(1963) 372 U.S. 627, 83 S.Ct. 996, 10 L.
Ed.2d 28 the water that EBMUD will be
buying is federal water and not subject to
state law." He felt constrained to add that
he found the arguments against federal su-
premacy "interesting and unpersuasive."
We are therefore confronted initially
with a jurisdictional question which would
bar this court from considering any other
issues in this case if it is answered ad-
versely to appellants.
From our own independent analysis, we
necessarily conclude that the trial judge's
ruling on this issue was correct. This is
because, while the argument that the com-
plaint in intervention stated a valid cause
of action under state law may have been
persuasive, we agree that federal law must
govern here. The fact that we have like-
wise reached this conclusion with some re-
luctance may be of little solace to appel-
lants, however.
The principal authorities that seem to
compel this decision are a series -of appel-
late decisions involving the validity of cer-
tain contracts entered into between two
state irrigation districts and a water dis-
trict on the one hand, and the United
States on the other, known collectively as
the Ivanhoe cases.
In the first of this line of cases, the Cal-
ifornia Supreme Court in Ivanhoe Irr.
Dist. v. All Parties (1957) 47 Cal.2d 597,
306 P.2d 824 (hereinafter "Ivanhoe I"),


616


---~Z


L, I ---








ENVIRONMENTAL DEFENSE FUND, INC. v. EAST BAY MUN. U. DIST. 617
Cite as. App., 125 Cal.Rptr. 601


upheld the validity of the contracts there
in question. Its opinion turned on an in-
terpretation of section 8 of the Reclama-
tion Act of 190215 which provides that the
Act is not to be construed- as interfering
with state laws "relating to the control, ap-
propriation, use, or distribution of water
used in irrigation, ." The contracts
incorporated the requirements of section 5
of the Reclamation Act 16 and provided
that the project water shall not be fur-
nished to lands in excess of 160 acres in
single ownership. In effect, Ivanhoe I
held that section 8 overrides all other sec-
tions of the Reclamation Act. Applying a
"trust theory" under state law, it purported
to hold that the Federal Government could
acquire no title to appropriative water
rights free of a trust in the State of Cali-
fornia for the benefit of its people. (Id.
at p. 620, 306 P.2d 824.) From this prem-
ise, it reached the conclusion that the ex-
cess lands provision was inoperative under
state law.
Ivanhoe I, however, was reversed by the
Supreme Court of the United States in
Ivanhoe Irrig. Dist. v. McCracken (1958)
357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d
1313. In rejecting the California court's
interpretation, it specifically held that "We
read nothing in 8 that compels the United
States to deliver water on conditions im-
posed by the State. To read 8 to the
contrary would require the Secretary to vi-

15. "Section 8: 'That nothing in this Act
shall be construed as affecting or intended to
affect or to in any way interfere with the
laws of any State or Territory relating to the
control, appropriation, use, or distribution of
water used in irrigation, or any vested right
acquired thereunder, and the Secretary of the
Interior, in carrying out the provisions of this
Act, shall proceed in conformity with such
laws, and nothing herein shall in any way af-
fect any right of any State or of the Fed-
eral Government or of any landowner, ap-
propriator, or user of water in, to, or froni
any interstate stream or the waters thereof:
Provided, That the right to the use of water
acquired under the provisions of this Act shall
be appurtenant to the land irrigated, and
beneficial use shall be the basis, the measure,
and the limit of the right.' 32 Stat. 390, 43
U.S.C. 372, 383." (Iranhoe Irrig. Dist.
125 Cal.Rptr.-39V2


olate 5, the provisions of which, as we
shall see, have been national policy for
over half a century. Without passing gen-
erally on the coverage of 8 in the deli-
cate area of federal-state relations in the
irrigation field, we do not believe that the
Congress intended 8 to override the re-
peatedly reaffirmed national policy of 5."
(Ivanhoe Irrig. Dist. v. McCracken, supra,
357 U.S. 275 at p. 292, 78 S.Ct. 1174 at p.
1184.)

Following this reversal, the California
Supreme Court recalled its remittiturs and
permitted rebriefing. In the decision
which followed, Ivanhoe Irr. Dist. v. All
Parties (1960) 53 Cal.2d 692, 3 Cal.Rptr.
317, 350 P.2d 69 (hereinafter "Ivanhoe
II"), the court repudiated the "trust theo-
ry", referring to it as "sheer dicta" (id. at
p. 716, 3 Cal.Rptr. 317, 350 P.2d 69) and
stated that under the decision of the Unit-
ed States Supreme Court "the holding of
this court on the prior appeals that the
160-acre limitation was in violation of the
'trust' duties imposed upon the public own-
ers of water rights by state law, was erro-
neous." (Id. at p. 709, 3 Cal.Rptr. at p.
327, 350 P.2d at p. 79.)

Elsewhere, it acknowledged that its
former construction giving primacy-to sec-
tion 8 of the Reclamation Act was also er-
roneous. In this connection, it quoted the
following key language from the United

v. McCracken (1958) 357 U.S. 275, 278-279,
78 S.Ct. 1174, 1177, fn. 4.)

16. "Section 5: '. .. No right to the
use of water for land in private ownership
shall be sold for a tract exceeding one hun-
dred and sixty acres to any one landowner,
and no such sale shall be made to any land-
owner unless lie he an actual bona fide resi-
dent on such land, or occupant thereof resid-
ing in the neighborhood of said land, and no
such right shall permanently attach until all
payments therefore are made.' 32 Stat. 389, 43
U.S.C. 431. This provision was substan-
tially re-enacted in 46 of the Omnibus Ad-
justment Act of 1926, 44 Stat. 649, as amend-
ed, 70 Stat. 524, 43 U.S.C. 423e." (Iranhoe
Irrig. Dist. r. McCracken (19.S) 357 U.S.
275, 277-27S, 78 S.Ct. 1174, 1177, fn. 2.)








618 125 CALIFORN

States. Supreme Court's opinion: 'As we
read 8, it merely requires -the United.
States to comply with state law when, in
the construction and operation of a recla-
mation project, it becomes necessary for it
to acquire water rights or vested interests
therein. But the acquisition of water
rights must not be confused with the oper-
ations of federal projects.' (Ivanhoe Irr.
Dist. v. All Parties, supra, 53 Cal.2d 692 at
p. 708, 3 Cal.Rptr. at p. 326, 350 P.2d at p.
78.)
Addressing itself to the question of
whether the districts have the legal capaci-
ty to contract to buy the water under state
law, Ivanhoe II pointed out that state stat-
utes specifically authorize the districts to
enter into such contracts. (Ivanhoe Irr.
Dist. v. All Parties, supra, 53 Cal.2d 692 at
pp. 704-716, 3 Cal.Rptr. 317, 350 P.2d 69.)
In deciding that the doctrine of federal
supremacy 7 applies, and that state courts
are without authority to interfere with
contracts of this kind, Ivanhoe II had this
to say: "The federal government with fed-
eral funds has lawfully developed water-
project water-that without the project
would not have been developed. The Unit-
ed States and the State of California have
provided by appropriate legislation for en-
tering into contracts regarding this water,
This water belongs to or by ap-
propriate action may be secured by the
United States. In a very real sense it is or
will become the property of the United
States." (Ivanhoe Irr. Dist. v. All Parties,
supra, 53 Cal.2d 692 at p. 704, 3 Cal.Rptr.
317 at p. 323, 350 P.2d 69 at p. 75.) In
other words, "It is or may become federal
water." (Id. at p. 716, 3 Cal.Rptr. 317 at
p. 331, 350 P.2d 69 at p. 83.)
"Obviously, the federal government law-
fully may contract to sell water that it

17. The object of the supremacy clause, as
applied to federal contracts, was well put
in U. N. v. Allegheny County (1943) 322 U.S.
174, 183, 64 S.Ct. 908, 913, 88 L.Ed. 1209:
"The purpose of the supremacy clause was
to avoid the introduction of disparities, con-
fusions and conflicts which would follow if
the Government's general authority were sub-


IA REPORTER


does not own, as long as it has the legal,
power to secure title. The United States
Supreme Court has declared as a matter of
federal law that the United States possess-
es such power. That holding is binding
upon this court." (Ivanhoe Irr. Dist. v.
All Parties, supra, 53 Cal.2d 692 at p. 715,
3 Cal.Rptr. 317 at p. 331, 350 P.2d 69 at p.
83.)
Nor is there merit in appellants' conten-
tion that the authority of EBMUD as a
state-created agency to contract with the
United States for water is, in the first in-
stance, questionable under state law. The
capacity of irrigation districts to enter into
contracts with the United States was, as
already mentioned, an issue that was raised
and considered in Ivanhoe II, supra, 53
Cal.2d 692 at page 706, 3 Cal.Rptr. 317, 350
P.2d 69 et seq., and it appears that the
questions are analogous.
Respondent EBMU) is formed and
functioning .under the Municipal Utility
District Act (Pub.Util.Code, div. 6, 11501
et seq.). Under this Act EBMUD has the
power, among other things, to "acquire,
construct, own, operate, control, or use,
within or without, or partly within or part-
ly without, the district, works or parts of
works for supplying the inhabitants of
the district and public agencies therein
with .. .water, ."
(Pub.Util.Code, 12801.) It may "make
contracts and enter into stipulations of any
nature whatsoever and
do all acts necessary and convenient for
the full exercise of the powers granted
." (Pub.Util.Code, 12721.) Fur-
thermore, a district "may enter into con-
tracts and cooperate with, and accept coop-
eration from, the United States, or any de-
partment, instrumentality, or agency there-
of, in the construction, maintenance, and

ject to local controls. The validity and con-
struction of contracts through which the
United States is exercising its constitutional
functions, their consequences on the rights and
obligations of the parties, the titles or liens
which they create or permit, all present ques-
tions of federal law not controlled by the law
of any State."








BOARD OF OSTEOPATHIC EXAM. v. BOARD OF MEDICAL EXAM. 619
53 Cal.App.3d 78 Cite as, App., 125 Cal.Rptr. 619


operation, of any such enterprise in accord-
ance with any legislation which Congress
may have heretofore adopted or may here-
after adopt [and] may do any
and all things necessary in order to avail
itself of such aid, assistance, and coopera-
tion under any federal legislation now
or hereafter enacted." (Pub.Util.Code,
12844.)

In Ivanhoe II, the court noted that Wa-
ter Code section 23195 authorized irriga-
tion districts to enter into contracts with
the United States. (Ivanhoe Irr. Dist. v.
.-Ill Parties, supra, 53 Cal.2d 692 at p. 706,
3 Cal.Rptr. 317, 350 P.2d 69.) It also not-
ed that sections 23197 and 23200 of the
Water Code are exceptions to Water Code
section 22250 which section provides that
discrimination among water users in an ir-
rigation district is contrary to state law.
(Id. at p. 709, 3 Cal.Rptr. 317, 350 P.2d
69.) In particular, section 23200 reads:
"'All water, the right to the use of which
is acquired by a district under any contract
with the'United States shall be distributed
and apportioned by the district in accord-
ance with the applicable acts of Congress,
the rules and regulations of the Secretary
of the Interior thereunder, and the provi-
sions of the contract, .'" (Id. at
p. 710, 3 Cal.Rptr. at p. 327, 350 P.2d at p.
79.)

Although the applicable provisions in the
Public Utilities Code are not as specific as
those in the Water Code, it appears that
the principle is the same and, therefore,
that it cannot be said that EBMUD lacked
the authority to enter into a contract with
the United States.
Since the complaint in intervention
therefore fails to state a cause of action
cognizable in this court, the trial judge's
order sustaining the demurrer to that
pleading without leave to amend was cor-
rect. The order dismissing the complaint
is reversed and the order dismissing the
complaint in intervention is affirmed.
Plaintiffs are to recover their costs on ap-
peal from respondents. Respondents are to


recover their costs on appeal from the in-
tervenor-appellant to the extent, their costs
relate to the appeal of the intervenor.

MOLINARI, P. J., and SIMS, J., con-
cur.


WEKYNUMBER SYSTEM


53 Cal.App.3d 78
BOARDD OF OSTEOPATHIC EXAMINERS L78
et al., Plaintiffs and Respondents,
v.
BOARD OF MEDICAL EXAMINERS
et al., Defendants and Appellants.
Civ. 14902.

Court of Appeal, Third District.
Nov. 18, 1975.
Hearing Denied Jan. 14, 1976.



Action was filed wherein a 1973 stat-
ute pertaining to the licensing of osteo-
pathic school graduates was challenged as
invalid. The Superior Court, Sacramento
County, Lloyd A. Phillips, Jr., J., entered
summary judgment for board of osteopath-
ic examiners, and board of medical exam-
iners appealed. The Court of Appeal, Par-
as, J., held that provision of 1962 initiative
statute, pertaining to the licensing of os-
teopathic school graduates, which autho-
rized legislature to amend the 1962 initia-
tive statute remained after Supreme Court
had declared 1962 initiative statute void in
part, and thus legislature had power in
1973 to amend the Osteopathic Act, which
was the 1922 Act modified by the 1962
Act, to provide for licensing of new osteo-
paths by board of medical examiners, un-
der specified conditions; and that title to
statute "An Act Relating to the Practice of
Medicine" was not misleading in that it did
not convey an attempt to amend the Osteo-
pathic Act by use of the term "osteopath"


i I I Ir I


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