PREMO, Acting P. J.
This appeal concerns rights to groundwater contained in the Santa Maria Valley Groundwater Basin (Basin). The Basin suffered severe water shortages beginning around the 1930's but the importation of water from outside the watershed and the local construction of dams and reservoirs relieved the historical water shortage. As a result, groundwater levels have been relatively stable for the last 30 years or so. Nevertheless, there is concern that aging reclamation facilities and growing population could lead to more shortages in the future. This litigation was commenced to identify and prioritize the water rights held by the many users of Basin groundwater. Most of the case was resolved by an agreement (Stipulation) among the Santa Maria Valley Water Conservation District (District), local cities and water companies (public water producers), and most of the owners of land overlying the Basin. The Stipulation contains a plan, referred to as a physical solution, which resolves conflicting water rights claims and allocates the various components of the groundwater (native groundwater, return flows of imported water, and salvaged water) among the stipulating parties. It also sets up a comprehensive Basin-wide groundwater management program that calls for continuing judicial oversight.
Appellants are two groups of landowners, mostly farmers, identified as the "Landowner Group" (the LOG parties) and the "Wineman parties," who extract groundwater for agricultural use upon their lands. Respondents are public water producers that pump groundwater for municipal and industrial use by their citizens and customers.
The trial court approved the Stipulation and made it part of the final judgment. The court rejected appellants' quiet title claims, finding that two of the public water producers had perfected prescriptive rights in the Basin's native groundwater. The court recognized that appellants might have preserved a prior right to some volume of groundwater by continuing to pump
On appeal, appellants challenge the trial court's approval of the Stipulation, arguing that the physical solution was unnecessary because there is no present water shortage. They attack the sufficiency of the evidence in support of the award of prescriptive rights and argue, in the alternative, that any prescriptive rights acquired years ago have been lost by nonuse. Appellants also maintain that the trial court erred in refusing to declare their overlying rights to be paramount and in its allocation of return flows and salvaged water to respondents. We will conclude as follows:
We reject the remainder of appellants' arguments, reverse the judgment, and remand with directions as specified below.
When the safe yield is insufficient to satisfy the reasonable and beneficial needs of all users, those with overlying rights take precedence. As among overlying owners, the rights are correlative. "[E]ach may use only his reasonable share when water is insufficient to meet the needs of all." (California Water Service, supra, 224 Cal.App.2d at p. 725.) As among appropriators, those first in time are first in right. (Id. at p. 726.) Prescriptive rights arise when an appropriator continues to pump water during times of overdraft. "An appropriative taking of water which is not surplus is wrongful and may ripen into a prescriptive right where the use is actual, open and notorious, hostile and adverse to the original owner, continuous and uninterrupted for the statutory period of five years, and under claim of right." (Ibid.)
Overlying landowners who fail to seek an injunction preventing an adverse use may nevertheless protect their interests by means of self-help. Self-help in this context requires the landowner to continue to pump nonsurplus water concurrently with the adverse users. When they do, the landowners retain their overlying rights, losing only the amount of the prescriptive taking. (Hi-Desert County Water Dist. v. Blue Skies Country Club, Inc. (1994) 23 Cal.App.4th 1723, 1731-1732 [28 Cal.Rptr.2d 909], citing San Fernando, supra, 14 Cal.3d at p. 293 & City of Pasadena v. City of Alhambra (1949) 33 Cal.2d 908, 931-933 [207 P.2d 17] (Pasadena).)
The Basin at the center of this case is a coastal groundwater basin underlying about 163,700 acres that straddle the line between Santa Barbara and San Luis Obispo Counties. It extends from Santa Barbara County northwest beyond the Nipomo Mesa to what the parties refer to as the "Northern Cities" area.
This case concerns three sources of groundwater: native groundwater (rainfall, natural infiltration from lakes and streams, and other natural inflows), return flows (imported water that is used on the surface which then percolates into the Basin), and salvaged water (water that would have wasted to the sea during the rainy season but for the dams and reservoirs that capture and save it). Return flows in the Basin are derived from State Water Project (SWP) water imported by several of the public water producers. Salvaged water is contributed by the Twitchell Dam and Reservoir in the Santa Maria Valley area and the Lopez Dam and Reservoir in the Northern Cities area. We shall refer to return flows and salvaged water collectively as "developed" water.
Much of the dispute in the instant case concerns the Twitchell project. The Twitchell project was conceived to address a long history of critical water shortages in the Basin. In 1945, persistent water shortages and concern about seawater intrusion led Santa Barbara County to establish the Santa Barbara County Water Agency (SBCWA). In 1954, Congress passed Public Law 774, authorizing the United States Department of the Interior, Bureau of Reclamation (Bureau of Reclamation), to contract with SBCWA for construction of the Vaquero (now Twitchell) Dam and Reservoir on the Cuyama River, a tributary of the Santa Maria River. As is true of many California rivers, the highest flow of the Cuyama and Santa Maria Rivers happens following storms during the rainy season. If not collected behind dams and stored in reservoirs, most of these high flows would waste to the sea in the winter and
Because river water is surface water, the Bureau of Reclamation had to obtain a license from the State Water Resources Control Board (SWRCB) to appropriate the seasonal flows of the Cuyama River. The District was formed and given the perpetual right to use the water the project made available. The project was completed in about 1962. The District has operated the project ever since, levying assessments for the project's construction and routine maintenance. The District does not pump water from the Basin and it does not distribute water from the reservoir.
The Lopez Dam and Reservoir in the Northern Cities area was built around the same time as the Twitchell project. Its construction and operation has been governed by agreements among the Northern Cities and related entities. It, like Twitchell, adds to the groundwater supply by infiltration from the reservoir and streambeds. It also pipes some water from the reservoir directly to users.
Completion of the Twitchell and Lopez projects, the importation of SWP water by several appropriators in the area, and a leveling off of agricultural development have contributed to stabilizing water levels in the Basin. Groundwater levels have been relatively stable since the late 1960's, reaching near historic highs in 1967. By 1997, the Basin had been in equilibrium for many years. Nevertheless, the District became concerned about future supplies. Urban population was growing. Overpumping had continued in the Nipomo area where there is no reclamation project. And the Twitchell Reservoir has been accumulating silt, which reduces its capacity and threatens to diminish its ability to augment natural recharge.
The District commenced this lawsuit in 1997 when it sued Santa Maria, Southern California Water Company (now known as GSWC), Guadalupe, and
The matter was tried in five phases. Basin boundaries were adjudicated in phases I and II. Phase III explored the question of whether the Basin was in overdraft. The trial court concluded that the Basin was not in a condition of overdraft and had not suffered overdraft in the past. The court did not calculate the safe yield but decided instead that the Basin's physical condition did not show the adverse effects one would expect from a long-term overdraft. Absent an overdraft, the public water producers could not have acquired prescriptive rights.
Before the phase IV trial commenced, the public water producers and most of the landowners other than appellants entered into the Stipulation. The Stipulation specifies that all stipulating landowners have a paramount overlying right to the groundwater, the public water producers have no prescriptive rights against stipulating landowners and have appropriative rights only to native groundwater that is surplus to the reasonable and beneficial needs of the stipulating landowners. In short, the Stipulation gives the stipulating parties the same rights in groundwater that they would have under the common law except that it eliminates any prescriptive rights adverse to the stipulating landowners that the public water producers may have perfected in the past. The Stipulation does not quantify the overlying or appropriative rights.
The Stipulation contains a physical solution dividing the Basin into three management areas corresponding to the three hydrological subareas. It sets forth detailed criteria for monitoring and managing groundwater in each management area, calling for the creation of technical committees or employment of a management area engineer to conduct the management programs. As to each of the three management areas, the Stipulation describes the factors used to identify a water shortage and the responses that must be taken. The Stipulation provides for continuing judicial oversight.
The Santa Maria Valley management area is the largest of the three management areas described in the Stipulation and is the subject of several issues raised in this appeal. The groundwater management plan for this area
In light of the Stipulation, the phase IV trial involved only appellants and the public water producers. Among the issues to be tried were the prescriptive rights claims of the public water producers and the legality of the Stipulation's allocation of the Twitchell Yield. In its phase IV statement of decision, the trial court reversed its previous conclusion rejecting the public water producers' prescriptive rights claim. The court found that the undisputed evidence showed that, even though the Basin had not suffered permanent adverse effects, the Basin had been in overdraft at least during the years 1944 through 1951, 1953 through 1957, and 1959 through 1967, and, throughout those periods, Santa Maria and GSWC had continued to pump water. The court also found "that even after the Twitchell augmentation began, there have been periods in excess of the statute of limitations during which there has been no surplus in the basin" and these public water producers continued to pump. The court found that the other elements of prescription were proved and, therefore, Santa Maria and GSWC had established prescriptive rights in the native supply.
The trial court approved the allocation of the Twitchell Yield as set forth in the Stipulation, explaining that during years there is a surplus, "all water users have the right to use the water as overlying owners or appropriators." During times of shortage, when there is no surplus, the District "may regulate
The final phase of the trial involved adjudication of appellants' quiet title claims and a determination of the effect of the trial court's previous finding of prescriptive rights. The trial court was also asked to decide whether it should impose the physical solution contained in the Stipulation and whether to enter a single judgment or enter judgment on the Stipulation separately.
The trial court concluded that the quiet title remedy was not available. Although appellants had submitted evidence to show that they had continued to pump as much water as they needed during the prescriptive periods, appellants had not submitted evidence from which the court could calculate the quantity of water they had pumped. Accordingly, the trial court held that it could not quiet title in any amount of groundwater. The court calculated the total volume of groundwater to which the prescriptive rights would attach and concluded that since the public water producers had waived their prescriptive rights against the stipulating landowners, only a fraction of the total would be enforceable against appellants.
The trial court approved the physical solution, explaining, "There is a reasonable certainty that the Basin will suffer water shortages in the future and that the court will be required to act in the future to preserve the rights of the various parties to this litigation in the event that Twitchell is not renovated and restored. Even if Twitchell is restored, there is a possibility that such shortages may occur," that the physical solution is "necessary and appropriate to provide for future exigencies," and its water management plan is "necessary and appropriate and will provide an efficacious solution to the Basin's current and future problems." As to allocation of the Twitchell Yield, the trial court held that no party had established a pre-Stipulation priority right to that water. The 80-20 allocation "does not affect any rights, contractual or otherwise, of the non-stipulating parties."
The trial court entered a single judgment on January 25, 2008, incorporating the Stipulation.
The judgment gives Santa Maria and GSWC the right to use the Basin for temporary storage and recapture of return flows generated from their importation of SWP water. The volume of return flows to which each is entitled is equal to 65 and 45 percent, respectively, of the volume of water they import. The Northern Cities are awarded "a prior and paramount right to produce 7,300 acre-feet of water per year from the Northern Cities Area of the Basin; and (b) the Non-Stipulating Parties have no overlying, appropriative, or other right to produce any water supplies in the Northern Cities Area of the Basin." As to the Twitchell Yield, the judgment states only: "No party established a pre-Stipulation priority right to any portion of that increment of augmented groundwater supply within the Basin that derives from the Twitchell Project's operation."
Although the Stipulation is not binding upon nonstipulating parties, the judgment independently requires appellants to "participate in and be bound
The judgment provides that the trial court shall retain jurisdiction to "make such further or supplemental orders as may be necessary or appropriate regarding interpretation and enforcement of all aspects of this Judgment, as well as clarifications or amendments to the Judgment consistent with the law." The Stipulation excludes from continuing judicial supervision several specified terms and includes an opt-out clause, which allows any party, upon motion and showing of good cause, to be released from the provisions of the judgment in the event of any material change to specified terms, including allocation of the Twitchell Yield.
The LOG and Wineman parties have filed separate appeals from the judgment. The LOG parties appeal from certain posttrial orders, as well. We have sorted appellants' numerous arguments into four main categories: (1) physical solution, (2) prescription and quiet title, (3) developed water, and (4) postjudgment rulings. We also consider several miscellaneous challenges to the judgment. We shall include the details of all these arguments and further factual information as needed in the discussions that follow.
The most fundamental rule of appellate review is that a judgment is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193]; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631 [80 Cal.Rptr.2d 378].) Where appellants challenge the sufficiency of the evidence we defer to the trial court. Our review is limited to whether there is any substantial evidence contradicted or uncontradicted that will support the challenged factual finding. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766-767 [60 Cal.Rptr.2d 770].) When the decisive facts are undisputed, we are confronted with a question of law and are not bound by the findings of the trial court. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 [35 Cal.Rptr.2d 418, 883 P.2d 960].)
Whether legal or factual, no error warrants reversal unless the appellant can show injury from the error. (Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 740 [2 Cal.Rptr.2d 594].) In order to demonstrate error, an appellant
In the present case we have more than 100 volumes of clerk's and reporters' transcripts. Appellants' briefs alone contain over 350 pages and recite over 100 points of error. Some of the discussion lacks reference to the record. Some arguments seem to be based upon a misreading of the judgment.
Appellants contend that because the Basin is not presently overdrafted there is no need for a physical solution and the trial court had no power to impose one. We reject the argument.
One early use of the phrase appears in Peabody v. City of Vallejo (1935) 2 Cal.2d 351, 365 [40 P.2d 486], where the plaintiffs, riparian landowners, argued that they were entitled to "the full flow of the stream ..., without diminution, ... and regardless of waste or surplus which such uses might entail ...." Referring to the newly adopted constitutional requirement of reasonable use, the Supreme Court rejected the plaintiffs' argument and reversed a judgment that had prohibited the City of Vallejo from storing and diverting some of the stream water for use by city residents. In remanding the matter the court directed: "[I]f a physical solution be ascertainable, the court has the power to make and should make reasonable regulations for the use of the water by the respective parties, provided they be adequate to protect the one having the paramount right in the substantial enjoyment thereof and to prevent its ultimate destruction, and in this connection the court has the power to and should reserve unto itself the right to change and modify its orders and decree as occasion may demand, either on its own motion or on motion of any party." (Id. at pp. 383-384.) Indeed, our Supreme Court has encouraged the trial courts to be creative in devising physical solutions to complex water problems to ensure a fair result consistent with the constitution's reasonable-use mandate. (Tulare Dist. v. Lindsay-Strathmore Dist. (1935) 3 Cal.2d 489, 574 [45 P.2d 972] (Tulare).)
So long as there is an "actual controversy," the trial court has the power to enter a judgment declaring the rights of the parties (Code Civ. Proc., § 1060) and to impose a physical solution where appropriate (City of Lodi v. East Bay Mun. Dist. (1936) 7 Cal.2d 316, 341 [60 P.2d 439] (Lodi)). "Each case must turn on its own facts, and the power of the court extends to working out a fair and just solution, if one can be worked out, of those facts." (Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 560-561 [81 P.2d 533].) As respondents correctly point out, the court not only has the power but the duty to fashion a solution to insure the reasonable and beneficial use of the state's water resources as required by article X, section 2. (Lodi, supra, at p. 341.) The only restriction is that, absent the party's consent, a physical solution may not adversely affect that party's existing water rights. (Cf. Mojave, supra, 23 Cal.4th at pp. 1243-1244, 1250-1251.)
The Wineman parties also challenge the delegation of decisionmaking authority to the TMA, arguing that it is an impermissible delegation of decisionmaking power to a directly involved participant in violation of the Fourteenth Amendment to the United States Constitution. The cases upon which the Wineman parties rely do not support the argument. In State Board v. Thrift-D-Lux Cleaners (1953) 40 Cal.2d 436, 448 [254 P.2d 29], the administrative body that set prices for dry cleaning was made up of a majority of dry cleaners. In Blumenthal v. Board of Medical Examiners (1962) 57 Cal.2d 228, 235-236 [18 Cal.Rptr. 501, 368 P.2d 101], licensed opticians had unlimited power to exclude others from the practice of optometry. In People v. Belous (1969) 71 Cal.2d 954, 960 [80 Cal.Rptr. 354, 458 P.2d 194], the physician asked to perform an abortion was required to interpret the abortion law to decide whether the procedure was legal. In each case the Legislature enacted a law giving decisionmaking power to persons whose interests conflicted with the interests of the persons (dry cleaning consumers, prospective licensees, women seeking abortions) who would be directly affected by the law. Here, the interests of the decisionmaking parties are aligned with appellants' interests. All Twitchell participants, the public water producers in particular, have an interest in optimizing Twitchell's recharge ability in order to avoid the restrictions that will be imposed in the event of a water shortage.
Although appellants maintain that any physical solution is unnecessary, they also argue that the physical solution the trial court imposed is inadequate to protect the Basin. Appellants offer no conclusive evidence to support their contention. And there is substantial evidence to support the trial court's implied finding that the physical solution is designed to be effective protection. Hydrogeologist Robert Beeby stated that the Stipulation requires water experts to collect data and make recommendations to the court to address any concerns that the data uncovers. Beeby believed that under the management and maintenance principles set forth in the Stipulation, the water supply in the Basin will be sufficient to meet demand through 2030. Given the available supply, in the unlikely event that rain stopped falling altogether, the technical monitoring committees or management area engineers will have at least 15 years to figure out what to do. According to Beeby, implementation of the Stipulation "would make it highly unlikely that water levels would ever drop below sea level in both Nipomo Mesa Management Area and the Santa Maria Valley Management Areas."
We conclude that the trial court did not err in approving the physical solution even though there is no present overdraft; delegation of decisionmaking authority to the TMA does not violate appellants' due process rights; and the evidence is sufficient to support the finding that the physical solution is designed to be effective in managing the groundwater supply.
Appellants challenge the award of prescriptive rights to Santa Maria and GSWC, attacking the elements of the claim for insufficiency of the evidence and raising the affirmative defenses of laches and nonuse. We begin with the evidentiary arguments.
In phase III the trial court looked for physical manifestations of overdraft and, finding none (other than some subsidence in the Nipomo area, which the court concluded did not demonstrate Basin-wide overdraft), the court was satisfied that the Basin had not been in overdraft and, therefore, that the public water producers could not prove prescriptive rights. The court reversed itself in phase IV, noting that acquisition of a prescriptive right could be proved without a showing of a permanent groundwater reduction so long as pumping exceeded safe yield for five continuous years. Appellants argue that the court was correct the first time, but we believe that the court's final approach is the correct one.
Where there has been "an actual adverse user of water" in the Basin, there is an "invasion, to some extent at least, of the rights of both overlying owners and [senior] appropriators" commencing in the year the overdraft commenced. (Pasadena, supra, 33 Cal.2d at pp. 928-929.) As the Supreme Court explained in discussing prescriptive rights in the Raymond Basin: "Each taking of water in excess of the safe yield, whether by subsequent appropriators or by increased use by prior appropriators, was wrongful and was an injury to the then existing owners of water rights, because the overdraft, from its very beginning, operated progressively to reduce the total available supply. Although no owner was immediately prevented from taking the water he needed, ... a continuation of the overdraft would eventually result in such a depletion of the supply stored in the underground basin that it would become inadequate.... [¶] The proper time to act in preserving the supply is when the overdraft commences, and the aid of the courts would come too late and be entirely inadequate if ... those who possess water rights could not commence legal proceedings until the supply was so greatly depleted that it actually became difficult or impossible to obtain water." (Id. at p. 929.) In short, a basin does not need to become irreversibly depleted before an appropriator's use is adverse. The adversity element is satisfied by pumping whenever extractions exceed the safe yield.
The trial court found in phase IV that there were "periods of five or more continuous years between 1900 and the present time during which there was no surplus, temporary or otherwise." Specifically, the trial court found that there was no surplus from "at least 1944-1951, 1953-1957, and 1959-1967." The evidence of historical overdraft — years when pumping exceeded the safe yield — is sufficient to support this finding. There was voluminous evidence, both documentary and testimonial, showing that extractions substantially exceeded the safe yield in the years cited by the trial court. By the 1960's, the cumulative deficit was in the hundreds of thousands of acre-feet. Appellants' only challenge to the evidence is the LOG parties' assertion that there was actually a surplus in 1962 and 1967. The assertion is based upon a water budget summary that shows total inflows for these two years was greater than
On the issue of notice, the trial court stated, "The conditions of depleted water levels within the basin, during the drought years, were themselves well known, or should have been known, to all who used water within the basin. In short, the parties hereto and their predecessors in interest were on notice of the wide fluctuation in the water levels in the aquifer by virtue of the fluctuating well levels, the actions of political leaders, the Acts of Congress, and the public notoriety surrounding the need and the construction of the Twitchell project (as well as the Lopez project)." The evidence is sufficient to support these findings. Indeed, the shortage that had begun in the 1930's was severe enough that it literally took an act of Congress (Pub.L. 774) to remedy it. Other evidence of widespread knowledge that Basin extractions had been exceeding the safe yield included a 1951 report by the Bureau of Reclamation that identified a critical water shortage and noted that groundwater levels in 1936 had reached the lowest levels ever recorded. There was also the 1953
The LOG parties contend that reports and transcripts are hearsay and not admissible for the truth of their contents. (Evid. Code, § 1200.) The truth of the contents of the documents, i.e., the truth of the assertion that the Basin was in overdraft, is not the point. Other evidence proved that. The documents were offered to prove that the statements contained within them were made. That is not hearsay but is original evidence. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 316 [94 Cal.Rptr.3d 198].) Respondents offered the documents as evidence that public statements were made and actions taken by local, state, and federal officials, demonstrating concern about depletion of the Basin's groundwater supply. The evidence supports the inference that appellants and their predecessors in interest had notice of the statements and, therefore, constructive notice of the commencement of a purported overdraft.
The LOG parties also argue that given the long-term absence of an overdraft, any prescriptive rights previously acquired have been lost by nonuse. It is true that a prescriptive right can be lost by nonuse. Civil Code section 811, subdivision 4, provides that a servitude acquired by prescription is extinguished by "disuse thereof by the owner of the servitude for the
The preceding analysis is consistent with our understanding of water rights law and is useful in analyzing the disuse issue before us. If, in the groundwater context, one uses the usufructuary common law water rights (overlying, appropriative, or prescriptive) by pumping the water out of the
We also recognize that, notwithstanding the recommendation of the Final Report, the Legislature has not abolished the prescription doctrine. It remains an established component of water rights law. And the Legislature has directed that we consider domestic use a higher use than irrigation (Wat. Code, § 106) and "that the right of a municipality to acquire and hold rights to the use of water should be protected to the fullest extent necessary for existing and future uses ...." (Id., § 106.5.) Domestic and municipal users take water as appropriators. Many, such as Santa Maria, may have done so during years of overdraft, acquiring, in the process, prescriptive rights to the native supply upon which they would be bound to depend in the event of a future shortage. The LOG parties' interpretation would lead to an especially harsh result from the perspective of these preferred water users. Thus, even if the LOG parties' interpretation were a supportable alternative, Water Code sections 106 and 106.5 compel us to reject it.
In the present case, appellants have title to the overlying land and Santa Maria and GSWC have valid prescriptive rights that attach to a specified volume of Basin groundwater. As to appellants' claim of self-help, the trial court found that "overall pumping by all water producers (overlying owners as well as appropriators) continued without reduction during the periods of severe drought ...." Appellants had, therefore, "retain[ed] the right to continue to take some water in the future, i.e., that amount pumped concurrently with the appropriator." Since appellants had made no attempt to show how much they had pumped during the prescriptive periods, the trial court concluded that it could not quiet title in appellants' overlying rights. Appellants argue that proof of the quantities they pumped during the long-ago prescriptive period was unnecessary. We agree with appellants.
It is true that evidence of the quantity of a landowner's reasonable and beneficial use is necessary in many cases. But quantification is required only when it serves some practical purpose. For example, when it is alleged that the water supply is insufficient to satisfy all users the court must determine the quantity needed by those with overlying rights in order to determine whether there is any surplus available for appropriation. (See, e.g., Tulare, supra, 3 Cal.2d at p. 525.) And it stands to reason that when there is a shortage, the court must determine how much each of the overlying owners is using in order to fairly allocate the available supply among them. But not every case requires quantification. (Corona Foothill Lemon Co. v. Lillibridge (1937) 8 Cal.2d 522, 531 [66 P.2d 443].) Where there are no conflicting
The existence of a surplus makes this case different from most other basin adjudications. It is more like Glendale in that appellants would not have been entitled to injunctive relief because the Basin contained a surplus of water over and above that which appellants were using. (Glendale, supra, 23 Cal.2d at pp. 78-79.) In Glendale, the purpose of the action "was not to protect rights in water already being used — there then being enough water for all — but to preserve a potential right to water that would be required for plaintiff's future needs." (San Fernando, supra, 14 Cal.3d at p. 268, citing Glendale, supra, at pp. 74-75.) The plaintiff's quiet title action was the appropriate procedure for protecting against future prescriptive claims by appropriators. "For the purpose of protection against prescription, the declaratory judgment in Glendale was as effective as if it had explicitly restrained defendants from asserting any right to the water except in subordination to plaintiff's paramount right." (San Fernando, supra, at pp. 268-269.) The same is true here. Because there is presently enough water for all users, appellants' action for quiet title necessarily focused upon preserving their rights in the future. They have already lost the right to exclude Santa Maria
There is a portion of the San Fernando opinion in which the Supreme Court sets forth a method for allocating the native supply between overlying and prescriptive rights holders. In that part the court states: "The effect of the prescriptive right would be to give to the party acquiring it and take away from the private defendant against whom it was acquired either (1) enough water to make the ratio of the prescriptive right to the remaining rights of the private defendant as favorable to the former in time of subsequent shortage as it was throughout the prescriptive period [citation] or (2) the amount of the prescriptive taking, whichever is less." (San Fernando, supra, 14 Cal.3d at p. 293, fn. omitted, citing Pasadena, supra, 33 Cal.2d 908 at pp. 931-933.) The first listed alternative suggests that the overlying owner retains only a proportionate share of the supply, which, if true, would require that we know how much the landowner pumped during the prescriptive period. However, as the appellate court noted in Hi-Desert County Water Dist. v. Blue Skies Country Club, Inc., supra, 23 Cal.App.4th at page 1733, footnote 9, "after stating this equation, the [San Fernando] court specifically stated that the overlying owner would retain from the native groundwater all but amounts lost by prescription, while the rest of the available supply would be allocated among holders of appropriative and prescriptive rights. ([San Fernando, supra, 14 Cal.3d] at p. 294.)" Like the Hi-Desert court, we do not interpret this part of the San Fernando opinion as giving the overlying and prescriptive rights holders proportionate shares in the safe yield. As the Supreme Court has stressed, overlying owners retain their rights by pumping. (San Fernando, supra, at p. 293, fn. 100; Mojave, supra, 23 Cal.4th at p. 1253.) The overlying right extends to the landowners' "present and prospective" reasonable beneficial use upon the land (Mojave, supra, at p. 1240) and, therefore, that is the right, less the volume lost to prescription, preserved by self-help. Quantification of the overlying right is not necessary because there is no present need to allocate the native supply. Accordingly, appellants are entitled to a declaration that their overlying rights are prior to all but the prescriptive rights proved by Santa Maria and GSWC.
The preceding discussion of overlying and prescriptive rights concerned native groundwater. We now turn to the issues related to developed water — return flows and salvaged water.
The judgment gives respondents the prior right to quantities of groundwater attributable to return flows of imported water. The LOG parties maintain that respondents can have no prior right to return flows, citing Water Code section 1202, subdivision (d), which defines unappropriated water as "[w]ater which having been appropriated or used flows back into a stream, lake or other body of water." According to the LOG parties, this means that return flows are unappropriated and available for use by anyone. Although Water Code section 1202 undoubtedly defines unappropriated water, it applies only to surface water, which is not the problem before us. And the reference to water flowing "back into" the stream, lake or other body of water implies that the section does not refer to imported water in any event.
The LOG parties argue that importers are not entitled to return flows unless their pumping stations are down-gradient from the place where the water percolates into the basin. In the Glendale and San Fernando cases upon which the LOG parties rely, the Supreme Court found that the City of Los Angeles was entitled to credit for return flows of water it had imported because its conduct — selling or spreading the water in areas where it would be sure to percolate into the city's groundwater basin — showed that the water was not abandoned and that the city had intended to recapture the water. This result did not turn upon the fact that the city's pumping stations happened to be downgradient from where the water was introduced. (See Glendale, supra, 23 Cal.2d at pp. 76-78; San Fernando, supra, 14 Cal.3d at pp. 255-262.) To the contrary, both courts clarified that the right to return flows does not attach to the particular water molecules. "The fact that spread water is commingled with other ground water is no obstacle to the right to recapture the amount by which the available conglomerated ground supply has been augmented by the spreading." (San Fernando, supra, at pp. 263-264, citing Glendale, supra, at pp. 76-77 & Wat. Code, § 7075.)
The judgment gives Santa Maria priority credit in groundwater equal to 65 percent of the SWP water it imports. It gives GSWC credit for 45 percent of its imports. Appellants argue that because the figures are based upon the total volume of wastewater sent to percolation ponds, the estimates do not take into account evaporative losses and, therefore, do not represent the net amount by which the imported water augments the Basin's supply. We reject the argument.
The trial court's calculations are based upon data showing that approximately 65 percent of the imported water (or 45 percent in the case of GSWC) flows into the sewers and on to the wastewater treatment plants after it is used. The rest of the imported water is used in a way that it does not end up in the sewer system, such as landscape irrigation "or other outdoor uses." Civil engineer Robert Wagner testified that in calculating return flows the engineers do not try to ascertain evaporative losses or return flows from outdoor uses. These amounts are minor and are believed to offset each other. "Some [return flow] gets in there we don't measure; some gets out we don't measure and they equal out." This is sufficient evidence to support the return-flow calculations in the judgment. The calculations are, after all, estimates.
The judgment awards the Northern Cities "a prior and paramount right to produce 7,300 acre-feet of water per year from the Northern Cities Area of the Basin." The calculation of that amount is found in the trial court's phase IV statement of decision. There the trial court found that "5200 acre feet a year are piped directly to the Northern cities, and return flows averaging 400 acre feet per year are generated by the Northern Cities' use of this water. In addition, approximately 300 acre feet per year are added to the aquifer as a result of the timed releases from the Lopez Reservoir into Arroyo Grande Creek. [¶] The Northern Cities purchase and import an average of 1200 acre feet annually from the State Water project, which saves pumping from the aquifer. Their use of this imported water also augments the groundwater supply by approximately 100 acre feet per year of return flows. [¶] The Northern Cities constructed six percolation ponds to capture runoff of rainfall and prevent it from wasting to the ocean. These percolation ponds augment the groundwater supply in the Northern Cities Area by approximately 100 acre feet per year." The court also found that the nonsettling landowners "did not claim or prove that they own any land in the Northern Cities Area."
As to the groundwater components of the award, the LOG parties argue that as a matter of law "[s]alvaged water creates no groundwater right." But as we shall explain below, that is not the law. The LOG parties also contend that the trial court's calculations of return flows were erroneous because they did not take evaporation into account. We reject this argument for the same reason we rejected it above.
There is no dispute that appellants have overlying rights to pump native groundwater from the Basin. But the priority of the overlying right does not extend to water made available by the efforts of another. Salvaged water may
The Twitchell Yield is the roughly 32,000 acre-feet per year the Twitchell project adds to the Basin that would not be there otherwise; it is salvaged water. Appellants argue that the trial court expressly found the Twitchell Yield to be native groundwater and that we should modify the judgment to make that clear. The argument takes the court's findings out of context.
The trial court found and the judgment states that no party had a pre-Stipulation right to the Twitchell Yield. This conclusion is correct. The Bureau of Reclamation holds the appropriative right to the water, having acquired the right by license from the SWRCB. The Bureau of Reclamation is the appropriator that rescued the water and, therefore, the right to use and distribute the water belonged, initially, to the Bureau of Reclamation. (Cf. Pomona etc. Co. v. San Antonio etc. Co., supra, 152 Cal. at p. 623.) Pursuant to its contract with the SBCWA, the District makes the water available to the Basin. No water-using party had any pre-Stipulation priority right to the water entering the Basin as a result of appropriation of Cuyama River water by the Bureau of Reclamation or the District's operation of the Twitchell project.
Appellants' contention that the trial court found the Twitchell Yield to be native groundwater is based upon a remark contained in the phase V statement of decision. Following the phase V trial, the trial court found that no party had proved a pre-Stipulation right to the Twitchell Yield and that the 80-20 allocation to the stipulating parties, "does not affect any rights, contractual or otherwise, of the non-stipulating parties. Further, enforcement of the stipulation's Twitchell allocation, as between the stipulating parties, does not adversely affect the rights to native ground water of any non-stipulating parties. The correlative rights of non-stipulating parties to native ground water will remain unaffected by the stipulation, subject only to the court's findings of the legal consequence of those prescriptive rights held by some Public Water Producers and the court's equitable jurisdiction. Twitchell water, once released for recharge, retains its character as native water. [¶] In the final judgment, the court will exclude the nonstipulating parties from the allocation of the Twitchell project as imposed in the stipulation. It would be premature for the court to order an allocation of water produced by Twitchell
Appellants rely upon the italicized sentence to support their contention that the trial court found the Twitchell Yield to be native groundwater. The trial court's comment may have been derived from a statement in Glendale, supra, 23 Cal.2d at pages 71 through 72. Glendale concerned the right to water in the basin underlying the San Fernando Valley. That basin, like this one, held native groundwater, return flows, and salvaged waters. The trial court had awarded Glendale a priority right to the salvaged water but the Supreme Court reversed, finding that Los Angeles's pueblo rights were paramount: "The fact that this water was made available by the Los Angeles Flood Control District does not determine its ownership. The district makes no claim to the water, and plaintiff's pueblo right affords no basis for an objection to any use of water that does not decrease plaintiff's supply, for such uses do not diminish the pueblo right. [Citations.] If this water was subject to the pueblo right before it was impounded by the district, it remained pueblo water despite the erection of the dams, so that the water abandoned by the district was subject to the right." (Id. at pp. 73-74.) The court concluded by stating: "Moreover, waters that are released to rejoin the body of water of which they are naturally a part are treated as natural parts of such streams. (Crane v. J.J. Stevinson, Inc. [(1936)] 5 Cal.2d 387, 400 [54 P.2d 1100]; Southern Cal. Investment Co. v. Wilshire [(1904)] 144 Cal. 68, 73.)" (Id. at p. 74.)
The point of Glendale was that both the stream and the basin were subject to the pueblo right. Because the water had been impounded from and returned back into bodies of water over which Los Angeles had paramount rights, and since the entity that had made it available abandoned it, the water remained subject to the pueblo right. (San Fernando, supra, 14 Cal.3d at p. 248, fn. 39, citing Glendale, supra, 23 Cal.2d at pp. 73-74.) This case is different. Pueblo rights are not at issue here and not one of the parties has a prior right to Cuyama River water. Furthermore, the District does not necessarily abandon the water when it is released. The license obtained by the Bureau of
The Wineman parties argue that allocating 80 percent of the Twitchell Yield to the public water producers to be used for municipal and industrial purposes conflicts with the federal preference for irrigation found in 43 United States Code sections 521 and 485h (sections 521 and 485h). These sections do not apply here. These sections allow the Secretary of the Interior (Secretary) to enter into contracts for the sale or lease of surplus water for
The Wineman parties rely upon Strawberry, supra, 576 F.3d at page 1148, which held that the project operator could not divert project water to municipal and industrial use without approval of the secretary. But the project in Strawberry was among the earliest of the reclamation projects, having been authorized in 1905 expressly for irrigation. (Id. at p. 1136; see In re Uintah Basin (Utah 2006) 133 P.3d 410, 416.) The Twitchell project was commenced nearly a half century later and in its enabling legislation Congress described the project as designed for "irrigation and the conservation of water, flood control, and for other purposes." (Pub.L. No. 774, ch. 1258 (Sept. 3, 1954) 68 Stat. 1190, italics added.) Furthermore, the contract between the Bureau of Reclamation and SBCWA specifies that the Bureau of Reclamation would not begin construction "until and unless water rights for project purposes satisfactory to the Secretary of the Interior have been acquired or assured ...." (Italics added.) The Bureau of Reclamation submitted two applications for permits to appropriate water; one requested water for "irrigation, domestic, salinity control, and incidental recreation" uses; the other requested water for "municipal and industrial" uses. The permit that was issued expressly allows for all these uses as does the license pursuant to which the Bureau of Reclamation continues to appropriate Cuyama River water. Since Congress explicitly authorized multiple uses for Twitchell water and the Bureau of Reclamation implicitly approved municipal and industrial uses by requesting and receiving the right to appropriate water for those purposes, allocation of a portion of the Twitchell Yield to municipal and industrial users does not represent a change in use for which federal law requires concurrence of the Secretary.
Implicit in appellants' arguments is their contention that the Twitchell allocation gives respondents a priority right to more groundwater than they are entitled to have. As we read it, the Stipulation gives the Twitchell participants a priority right in a precalculated volume of 32,000 acre-feet per year, whether or not any capital improvements have been implemented and even if the amount of water the Twitchell project actually contributes to the Basin diminishes over time. At oral argument, counsel for respondents clarified that the Stipulation's allocation of the Twitchell Yield merely allows the Twitchell participants to characterize the first 32,000 acre-feet they take as salvaged water, which means they will not be charged with extracting any part of the native supply until they have pumped the full Twitchell Yield. But the Twitchell participants are not entitled to claim a priority right in a volume of salvaged water greater than that which is actually saved because that would invade the supply to which appellants have a prior right. The Twitchell participants are collectively entitled to characterize as salvaged water no more than the actual amount by which Twitchell has augmented the Basin supply. The judgment should be modified to reflect this limitation.
The LOG parties objected to four postjudgment rulings approving groundwater monitoring plans for the Nipomo, Northern Cities, and Santa Maria Valley management areas and a Water Shortage Condition and Response Plan submitted by Nipomo. The LOG parties argued that the entire action was stayed pending resolution of this appeal. When the trial court rejected the argument the LOG parties petitioned this court for a writ of supersedeas to prevent the trial court from ruling on the motions. This court denied the petition and the trial court approved the four plans. On appeal, the LOG parties maintain that the trial court's orders are void because the entire matter was stayed.
None of the possible outcomes of this appeal would have any effect upon the challenged postjudgment orders nor would those postjudgment orders make the appeal itself ineffective. Each of the postjudgment rulings would have or could have occurred regardless of the outcome here. The trial court made it quite clear that its orders approving the monitoring programs concerned only "those who have adopted" those plans. The LOG parties do not challenge respondents' right to establish monitoring programs. At best they argue that it was unnecessary for the trial court to make those programs part of this judgment. But even if we were to agree with that argument, the stipulating parties could nevertheless have sought judicial enforcement of the agreement as among themselves either via Code of Civil Procedure section 664.6 or a common law contract action. And as to the management plan submitted by Nipomo, the LOG parties have not contested any aspect of the Stipulation that applies to the Nipomo water management area. Whatever we were to decide about prescriptive rights, the Twitchell Yield, return flows, or the authority of the TMA, it would not have affected or been affected by approval of Nipomo's Water Shortage Condition and Response Plan.
As to the LOG parties' substantive challenge to the postjudgment orders, there is a vague and perfunctory reference on page 144 of the opening brief to arguments "incorporated herein." The absence of any cogent discussion of the alleged error convinces us that the claim does not warrant review.
To recap, we conclude that the trial court acted within its discretion in approving a physical solution notwithstanding the absence of a current
The evidence is sufficient to support the trial court's calculation of return flow rights in the Santa Maria Valley management area. The trial court did not err in finding that the Northern Cities have prior rights to 7,300 acre-feet per year of water produced by the Lopez project, which includes a prior right to 5,200 acre-feet piped directly from the Lopez Reservoir and 1,200 acre-feet per year of imported SWP water, as well as 700 acre-feet per year of salvaged water and return flows stored in the underground Basin.
The trial court correctly determined that the District has the power to allocate the Twitchell Yield among users consistent with its contractual and statutory authority and that the allocation does not offend the prior rights of appellants. As written, however, the judgment could allow respondents to characterize 32,000 acre-feet per year as salvaged water whether or not the Twitchell project continues to augment the Basin to that extent. On remand, the trial court is directed to modify the judgment to clarify that rights to the Twitchell Yield shall not invade appellants' overlying rights to native groundwater.
The four postjudgment matters upon which the trial court ruled during the pendency of this appeal were not stayed by the appeal. We have deemed the LOG parties' substantive challenge to those orders to be abandoned.
The judgment is reversed. The matter is remanded to the trial court with instructions to modify the judgment as follows:
As to those appellants that pleaded quiet title causes of action, the court shall declare their overlying rights to native groundwater prior to the rights of all appropriators less the amount to which the City of Santa Maria and Golden State Water Company are entitled pursuant to their prescriptive rights and shall reconsider, if necessary, the prevailing party determination and allocation of costs.
The parties shall bear their own costs on appeal.
Elia, J., and Grover, J.,
We also note that only some of the nonstipulating landowners pleaded quiet title causes of action. Our ruling naturally applies only to those who did.
