This is an appeal by the parties moving to amend a judgment (the moving parties)
The first issue in this appeal is whether the jurisdiction retained by the trial court in the 1961 judgment imposing the physical solution extends to utilization of the dewatered portion of the West Basin. In light of language in a 1980 amendment to the 1961 judgment, we hold the trial court did have jurisdiction to consider the motion to amend the judgment.
The second issue is whether the trial court erred in denying the motion to amend the judgment, without holding an evidentiary hearing, out of concern that certain express and implied findings in the proposed amendment might ultimately be inconsistent with any later EIR under CEQA. We conclude that under California's constitutional approach to water law, if the parties could not agree on a resolution of the issue presented in the motion to amend the judgment, the trial court had a duty to admit evidence, and if necessary, suggest a physical solution for use of dewatered acreage. (City of Lodi v. East Bay Mun. Utility Dist. (1936) 7 Cal.2d 316, 341 [60 P.2d 439].) We further hold the trial court erred in requiring that the moving parties obtain EIR's under CEQA prior to litigating a physical solution to the issue of dewatered acreage. The express language of Water Code section 10753
We therefore reverse the order denying the motion to amend the judgment and remand the matter to the trial court for a full hearing on a physical solution to the water storage issue.
Since 1928, California's public policy is to foster the reasonable beneficial use of water. (Cal. Const., art. X, § 2, formerly art. XIV, § 3; Wat. Code, § 100; City of Lodi v. East Bay Mun. Utility Dist., supra, 7 Cal.2d at pp. 337-338.) "It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. . . . This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained." (Cal. Const., art. X, § 2.) The policy protects actual and prospective reasonable beneficial uses. (City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1224, 1241-1242 [99 Cal.Rptr.2d 294, 5 P.3d 853]; Tulare Dist. v. Lindsay-Strathmore Dist. (1935) 3 Cal.2d 489, 525 [45 P.2d 972].)
The West Basin is a groundwater basin which includes 101,000 acres in Los Angeles County, located to the west of the Central Groundwater Basin (Central Basin). The two basins are separated by a geologic fault but are hydrogeologically connected. The West Basin is partially replenished by groundwater underflow from the Central Basin. The West Basin supplies a portion of the water to about 1.35 million people; the two basins combined supply more than 4 million people with their daily water.
Prior to 1959, population growth in urban areas increased groundwater pumping to meet increased demands. Pumping for the West Basin reached levels as high as or more than double the amount of California's Department of Water Resources considered to be safe to withdraw on an annual basis without causing harm to the basin's water supply. The drop in groundwater levels resulted in seawater intrusion, increased pumping costs, and the risk of loss for drinking water storage space. The basins were in an "overdraft" condition, meaning the quantity of water pumped out of the basin exceeds the amount of natural replenishment.
Efforts to address the overdraft issue in the West Basin culminated with a lawsuit filed on October 24, 1945, by the California Water Service, the Palos Verdes Water Companies, and the City of Torrance against over 600 named and fictitious defendants. (See California Water Service Co. v. Edward Sidebotham & Son (1964) 224 Cal.App.2d 715, 721 [37 Cal.Rptr. 1].) The WRD, one of the moving parties in this case, was formed in 1959 pursuant to section 60000 et seq. to be the public agency permanently charged with replenishing the groundwater pumped out of the basins by various entities. In the early 1960's, the courts adjudicated issues concerning the overdrafts from the basins which resulted in two court judgments (the "Central Basin Judgment" and the "West Basin Judgment").
The West Basin Judgment, entered on August 22, 1961, was a stipulated judgment between the parties owning more than 80 percent of the prescriptive rights in the basin. The parties agreed to allocate the water, restrict total production, and provide for an exchange of pool arrangement.
The West Basin Judgment does not contain provisions relating to storage. The trial court reserved jurisdiction and continued supervision over the West
The West Basin Judgment has been amended on multiple occasions since 1961. Pertinent to this case, the West Basin Judgment was amended on March 21, 1980 (the 1980 judgment), to deal with a series of problems. The following items were included in the 1980 judgment: carryover rights when a party did not extract all of its allocated water during a year; sanctions to be imposed when a party extracts water in excess of its annual allocation; carryover rights for water not extracted in portions of 1976 through 1978; exchange of "supplemental water" that was not part of a party's extraction rights; the authority of the Watermaster to allocate the use of the supplemental water based on price considerations; and a pricing and dispute mechanism which involved the Watermaster and potential judicial review.
The 1980 judgment provides a mechanism for replenishing water in an emergency,
Paragraph XV of the 1980 judgment materially expands the equitable power of the trial court to adjudicate subterranean water rights by making the following italicized changes to the 1961 judgment: "The Court further reserves jurisdiction . . . to make such modifications of or such additions to, the provisions of this judgment, or make such further order or orders as may be necessary or desirable for the adequate enforcement, protection or preservation of the Basin and of the rights of such parties as herein determined." The 1980 judgment adds the power of the trial court to take necessary steps to protect and preserve the West Basin in addition to the rights of the parties as was specified in the 1961 judgment.
The moving parties filed a motion to amend and restate the judgment on May 4, 2009. According to the motion, the West Basin has approximately 300,000 acre-feet of space that is "dewatered" or unused. The motion sought to amend and restate the judgment to allow 120,000 acre-feet of the dewatered space to be utilized for water storage.
The moving parties began drafting plans to develop a storage program that is consistent with the California Constitution's mandate that all water resources be put to beneficial use to the fullest extent and for the greatest public benefit. Several parties, including the WRD, reached a compromise solution following years of mediation, including participation and input from the Director of Water Resources, regarding the use of the storage space. A majority of the parties holding adjudicated rights in the West and Central Basins brought companion motions proposing amendment of the judgments for their respective basins to establish a comprehensive groundwater storage program to be administered by a new court-appointed Watermaster.
Paragraph 4 of the stipulation provides: "The Amendments are necessary to assure the State of California and other local agencies that a durable legal framework is in place to provide for the effective management of the West Basin." In the event the motion was granted, the parties agreed, for a 20-year period, not to seek further amendment in a manner inconsistent with the stipulated order. The parties also agreed not to seek a modification of the replenishment assessment in a manner that would result in the lack of uniformity between the two basins, or seek to quantify, adjudicate, or otherwise determine the amount of water flowing beneath or between the basins. The stipulation would be terminated if either the West Basin or Central Basin motions to amend were denied.
The proposed amendment to the West Basin Judgment included a number of substantive changes regarding a new storage program which would facilitate organized and coordinated use of underground storage space for maximum beneficial use. First, the amended judgment would declare that 120,000 acre-feet of the total of approximately 300,000 acre-feet of dewatered storage space may be used. A party may store up to 200 percent of the party's adjudicated rights, if space is available. The available dewatered space would have two functional categories—the "available storage capacity" and the "basin operating reserve." The "available storage capacity" would contain 70,900 acre-feet and be made available for various forms of storage projects by water users. The "basin operating reserve" would reserve 149,100 acre-feet to serve a replenishment function, including temporary storage projects when the water replenishment district did not need the space for the replenishment function.
Second, the proposed amendments would divide available storage capacity into three categories of storage—individual storage accounts, a community storage pool, and regional storage projects. The individual storage account would allow each party (without the need for any prior review or approval) to store an amount of water up to 40 percent of the party's allowed pumping allocation. The community storage pool would allow the parties to store water not in excess of 35,500 acre-feet. The parties must vacate the storage
Third, the proposed amendments would allow a "carryover conversion," allowing a party to store water by directly importing it or electing to convert any unused one-year carryover water to stored waters. The conversion would require the party to pay a replenishment assessment for the stored water to ensure the replacement water is purchased to offset the later extraction. The proposed amendments would use a concept similar to "in lieu" replenishment whereby the water replenishment district paid a water rights holder to not produce groundwater and instead take water from surface delivery sources. The proposed amendments would increase water supplies of stored water through "in lieu" storage.
Seven additional proposed amendments to the judgment involved the following issues: establishing a basin operating reserve for operation of the WRD's replenishment program; the appointment of a new Watermaster with three different functions (a water rights panel to enforce the pumping aspects of the judgment, a storage panel to review proposals for regional storage and to enforce the storage program, and an administrative body to maintain records and administer the review process for certain storage projects); the establishment of limits on extractions; allowance for permanent extraction right increases when the parties cooperatively develop a program that permanently adds additional water to the basin; allowing the transfer of storage rights between parties to the judgment in a like manner as the water rights themselves, including transfer of the stored water to the Central from the West Basin; and uniformity in the replenishment assessment across the two basins.
Additionally, the proposed amendments included periodic review to evaluate the success of the storage program and reports to the trial court, with the program subject to a complete reevaluation by the court at the end of 20 years. The court would retain jurisdiction to effectuate the judgment's purposes.
Hillside Memorial Park and Mortuary filed an opposition to the motion to amend the judgment. Tesoro Refining and Marketing Company filed objections to the motion. Both opposing parties raised various issues. As pertinent to this appeal, the opposing parties argued the trial court did not have subject matter jurisdiction to consider the merits of the motion, and the motion failed to comply with CEQA.
The trial court denied the motion to amend the judgment in a seven-page order without holding an evidentiary hearing. The court noted that the proposed amended judgment included the following language: "`Because of the restrictions and Basin management provisions set forth herein, the use of the [dewatered space] will not materially encroach into the vadose zone or create an unreasonable risk of harm that may be associated with high groundwater level mobilizing contaminants or inundating structures.'" The court was not willing to sign an order containing this language, because to do so would abrogate the statutory procedures imposed on public agencies, such as the WRD, under CEQA for preparation and public dissemination of an EIR supporting such findings. The court was also not prepared to foreclose the right, preserved by CEQA, of any dissenting party to challenge an EIR. The court rejected deletion of all references to the potential environmental impact from the proposed judgment as unfeasible.
The trial court rejected the moving parties' contention that they had not approved a project subject to CEQA because the motion to amend a judgment imposing a physical solution is not a project. This contention relied upon the writ proceeding in the superior court challenging a resolution which supported an effort to amend the Central Basin Judgment. The writ was denied because the writ court concluded a resolution to seek to amend a judgment is not a project under CEQA, as the resolution did not commit the parties to the project, but only to filing a motion to amend. Unlike the writ proceeding in the Central Basin action, the trial court found the challenge here is not to the resolution to file the motion to amend, but it instead is a challenge to the motion seeking to amend the judgment.
The writ judgment did not touch upon the merits of a motion to amend, weigh the evidence, or make explicit findings that the plan to set aside a defined space for storage at a certain depth of the West Basin would not have an adverse environmental impact. While the writ court could conclude the adoption of a resolution to seek court approval did not commit moving parties to the underground water storage plan, the same cannot be said of the approval sought by the moving parties of an elaborately detailed plan for water storage which would become part of the West Basin Judgment. Approval of the proposed judgment would be tantamount to approval of the storage plan, and all the explicit and implicit factual findings in the proposed judgment.
The result of approval of the proposed amended judgment would be that the salutatory provisions of CEQA would be bypassed in all practical respects. Alternatively, the trial court would be declaring facts that might be
The trial court rejected the moving parties' suggestion that additional language be added to the amended judgment to clearly indicate that the WRD will be required to comply with CEQA with regard to its replenishment activities. Even if so amended, the possibility remained for potential conflict with the factual findings in the amended judgment. The findings in the proposed amended judgment had the potential of being inconsistent with any findings that might be made under regular judicial review under CEQA of the potential negative environmental impact of the storage plan.
The trial court also rejected the WRD's argument that the moving parties lack the authority to establish a protocol for management of the basin's storage space in a coordinated fashion, and only the court can amend the judgment with a physical solution. The flaw in the argument is that the motion did not merely establish a protocol for management and use of dewatered space, it also sought findings declaring that the storage plan would not have a negative impact on the basin.
The trial court stated it was possible that a motion aimed simply at amending the judgment to establish a governance system for water storage might have avoided the need for CEQA compliance, but the motion to amend the judgment calls for more than just creating a governance system. It establishes, in great detail, the locations of the underground storage spaces, how the space is to be used and by whom, and declares the plan will have no negative impact on the environment. On this record, the court rejected severance of the proposed plan of implementation from the provisions dealing with protocol for management of the West Basin's water resources. Such a revision of the proposed amended judgment would alter the substantive content of the motion and the proposed judgment in a fundamental way.
The trial court concluded the motion should be denied because of the absence of compliance with the requirements of CEQA by the WRD. The court's only finding of fact is that there is no evidence that WRD issued an EIR in compliance with CEQA. The plan proposed constitutes a project, compliance with CEQA is required, and the court denied the motion to amend the judgment due to the absence of CEQA compliance.
The opposing parties argue the trial court had no jurisdiction to amend the West Basin Judgment to allow utilization of the dewatered space, reasoning
The 1961 judgment follows the established practice of expressly granting the trial court continuing jurisdiction to address future issues involving water rights. (City of Pasadena v. City of Alhambra (1949) 33 Cal.2d 908, 937; [207 P.2d 17]; City of L. A. v. City of Glendale (1943) 23 Cal.2d 68, 81 [142 P.2d 289].) The court reserved jurisdiction to "make such modifications of or such additions to, the provisions of this judgment, or make such further order or orders as may be necessary or desirable for the adequate enforcement, protection or preservation of the rights of the parties. The 1980 judgment materially expands the power of the trial court to take necessary steps to protect and preserve the West Basin in addition to the rights of the parties.
We disagree with the opposing parties that Orange County Water Dist. v. City of Colton (1964) 226 Cal.App.2d 642, 648-649 [38 Cal.Rptr. 286] requires a different result because the 1961 judgment at issue in this case is silent on the storage issue. City of Colton upheld a trial court's denial of a motion to modify a judgment determining prescriptive rights between parties. (Ibid.) The proposed modification in City of Colton would have covered issues not contemplated in the original judgment. Further, the proposed modification would have imposed terms upon parties who had not participated in the original proceedings. (Id. at pp. 648-650.) Unlike City of Colton, the modification of the original judgment in this case expanded the trial court's jurisdiction to reach the issues in the proposed amended judgment. Similarly, there is no merit to the opposing parties' reliance on Big Bear Mun. Water Dist. v. Bear Valley Mutual Water Co. (1989) 207 Cal.App.3d 363, 370, [254 Cal.Rptr. 757], which involved interpretation of a continuing jurisdiction provision narrowly limited to "`interpretation, enforcement, or carrying out this Judgment,'" which is materially different from the broad language before us. (Ibid., italics omitted.)
The trial court had jurisdiction to rule on the storage space allocation issue raised by the moving parties. We therefore turn to the remaining issue of
A trial court exercises its equitable powers in approving a physical solution and entering the judgment, and review of that judgment is under the abuse of discretion standard of review. (City of Barstow v. Mojave Water Agency, supra, 23 Cal.4th at p. 1256; California American Water v. City of Seaside, supra, 183 Cal.App.4th at p. 481.) "By retaining jurisdiction to consider the effect of this added source of water and its dependability for the purpose of working out a solution, the court will be carrying out the policy inherent in the water law of this state to utilize all water available. [Citations.]" (Allen v. California Water & Tel. Co. (1946) 29 Cal.2d 466, 488 [176 P.2d 8].)
The trial court unquestionably denied the motion to amend the judgment without holding an evidentiary hearing aimed at establishing a physical solution to the issue of utilization of the dewatered portion of the West Basin. In so doing, the court did not fulfill its duties of holding an evidentiary hearing, and if the parties could not agree, suggesting a physical solution which the court could impose upon the parties over their objections. (City of Lodi v. East Bay Mun. Utility Dist., supra, 7 Cal.2d at p. 341.)
However, where an existing judgment is in place establishing a physical solution to water rights issues, the public agency has no judgmental controls to exercise. The power to act in these circumstances is reserved to the court. This proposition is clearly set forth in section 10753, subdivision (a), which unambiguously, deprives a local agency of the authority to "adopt and implement a groundwater management plan" if the groundwater basis is the subject of "a court order, judgment, or decree."
The judgment is reversed. Appellants shall recover their costs on appeal.
Turner, P. J., and Kumar, J.