ENVIRONMENTAL DEFENSE FUND INC v. County of Sacramento, a political subdivision of the State of California, intervenor and Appellant.

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Court of Appeal, First District, Division 1, California.

ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs and Appellants, v. EAST BAY MUNICIPAL UTILITY DISTRICT et al., Defendants and Respondents, County of Sacramento, a political subdivision of the State of California, intervenor and Appellant.

Civ. 33624.

Decided: November 07, 1975

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 defendants and respondents. John B. Heinrich, County Counsel of Sacramento County, L. B. Elam, Deputy County Counsel, Sacramento, for intervenor 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 curiae in support of appellants. Henderson, Goodwin, Marking & Rogers, Robert E. Goodwin, Santa Barbara, for Goleta County Water Dist., amicus curiae in support of appellants. Kronick, Moskovitz, Tiedemann & Girard, Adolph Moskovitz, Clifford Schulz, Sacramento, for Assn. of Cal. Water Agencies, amicus curiae in support of respondents.

Plaintiffs and appellants in this suit involving the interpretation of the basic water law of California are several nonprofit corporations dedicated to protecting and preserving the natural environment, joined by 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 second largest distributor of water in the Western United States. The other respondents are its directors and its general manager. The intervenor, County of Sacramento, has for the past 13 years been in the process of developing a 2,000-acre green belt for scenic and recreational purposes along both banks of the lower American River.

Appellants brought this action for declaratory, 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 government, is completed. EBMUD, which now gets most of its water from the Mokelumne River, insists that this supplemental water supply will be urgently needed by 1985 to meet its anticipated future requirements.

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 demurrers to the first amended complaint and to the complaint in intervention without leave to amend. This appeal is from the judgments entered in favor of respondents pursuant to the foregoing orders.

It comes before us, therefore, as a pleading 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 constitutional 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 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. 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 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. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner's land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which the appropriator is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.’

All parties agree that the erudite trial judge gave a complete and accurate description of the parties, their pleadings, the factual allegations, and the issues resulting therefrom, in the opinion incorporated in and made part of his decision. Since we deem it unnecessary to attempt to gild the lily, we therefore adopt the following excerpts:

A. The Complaint

‘1. The plaintiffs. Plaintiffs are three organizations and four individuals. Plaintiff Environmental Defense Fund is a nationwide nonprofit membership corporation, with many members in Alameda and Contra Costa Counties. It is a New York corporation with an office in Berkeley, California. Among its purposes is the protection of the natural environment, including rivers. It has brought numerous suits throughout the county and is suing here on its behalf as well as on behalf of its members.

‘Plaintiff Oceanic Society is a California nonprofit corporation. It has a particular interest in the preservation of San Francisco Bay's aquatic environment by means of waste water recycling. Plaintiff Save the American River Association is a California nonprofit membership corporation, formed to protect the lands adjacent to the lower American River and the quantity and quality of its flow.

‘The individual plaintiffs are all taxpayers and either homeowners or renters in Alameda or Contra Costa Counties, within the service area of defendant East Bay Municipal Utilities District (hereinafter EBMUD). Three are members of plaintiff Environmental Defense Fund; all have an interest in the preservation of San Francisco Bay and are concerned with the pollution of the Bay; three have made recreational use of the American River, one especially has kayaked extensively on parts of the river that would be inundated under present plans.

‘2. The defendants. EBMUD is a utility district supplying water to large portions of Alameda and Contra Costa Counties. It also engages, through its Special District One, in some treatment of waste water. Defendant Harnett is EBMUD's general manager.

‘3. Factual allegations. Plaintiffs set forth the facts upon which they rely with unusual lucidity. In summarizing them, I will, for the sake of simplicity, avoid repeated use of the word ‘alleged.’ Plaintiffs charge:

‘EBMUD supplies water to over a million people in Alameda and Contra Costa Counties, at an average rate of 212 million gallons a day. EBMUD gets most of the water from the Mokulumne River to which it holds rights to 325 million gallons a day. EBMUD organized and controls Special District Number One which operates a sewage treatment plant. This plant gives waste water only ‘primary treatment’ and discharges the effluent into San Francisco Bay.

‘EBMUD has decided that by 1985 water from the Mokulumne will no longer be sufficient to meet the anticipated water needs of the people in the district. It began a wide-ranging search for additional water. As part of the search, it signed an agreement in 1968 with the U.S. Bureaus of Reclamation and other parties. This agreement looked toward getting water from the American River and in it EBMUD 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 Hood-Clay Connection, if federal and state authorities do not build it and if the Bureau 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 actively support congressional authorization and federal construction of the East Side Division, including the Hood-Clay Connection.

‘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 completion 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 water, EBMUD did not recognize its legal obligation to embark on a waste-water reclamation program. EBMUD has decided not to develop reclamation facilities to assist 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 American River water will cost consumers more than reclaimed water. In addition, EBMUD has made ‘a major contribution . . . to the likelihood that the Bureau will (a) complete its construction of the Auburn-Folsom-South Project and (b) undertake construction of the East Side Division.’ These two endeavors will have serious harmful environmental consequences specified in the complaint, among them the destruction of the free-flowing north and middle forks of the American and the reduction of flow on the lower American, with the attendant loss of boating, fishing and other recreational opportunities. EBMUD will also continue to pollute the Bay with resulting environmental damage.

‘4. Causes of Action. These allegations give rise to three asserted causes of action. The first is that EBMUD's decision not to develop water reclamation facilities 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 EBMUD's decision to seek water from the American River violates the same provisions. The third is that the two decisions in combination contravene these provisions.4

‘5. Relief sought. Plaintiffs seek a declaration that the two decisions are illegal, 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 facilities 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 previously sustained a general demurrer to the complaint with leave to amend.

‘B. The Complaint in Intervention

‘Intervenor is the County of Sacramento. The county alleges: The American River is the second largest tributary of the Sacramento. The lower American, running 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. Pursuant to it, the county acquired 2000 acres of land on both sides of the lower American in order to develop a greenbelt for recreational and scenic purposes along the river. The areas covered by the plan will become a regional park; they will be improved in ways specified by the complaint and will cover the equivalent of twelve square miles. The county has already expended over six million dollars for land acquisition and improvements under the plan and expects to spend a million to 1 1/2 million 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 construction of a dam at Auburn above Folsom Dam and the construction of a canal, the Folsom South Canal, above Nimbus Dam. The Auburn Dam and Folsom South Canal are presently under construction 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 contracted with the United States to get sufficient water at least as efficiently and economically from the Sacramento River at or below its confluence with the lower American.

‘The county next pleads a 1972 decision of the California Water Resources Control Board (Decision 1400). This decision made certain specified findings as to optimum and minimum water flows needed in the lower American for the protection of fish and wildlife and for recreational purposes. The decision orders certain minimum flows below those necessary to provide optimum conditions for fish and wildlife 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: [¶] ‘The Bureau contract with East Bay Municipal Utility District provides for delivery of water through the Folsom South Canal rather than from a downstream location. This type of water development, while satisfying one water requirement, eliminates the possibility for multiple beneficial uses of the water, and is not sound management of the water resource. If the Bureau contract with the District had required 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 increased minimum flows below Nimbus Dam would be eliminated if EBMUD's point of delivery were made from the Sacramento River.’

‘Claiming irreparable injury, the county seeks a declaration that EBMUD ‘lacked legal capacity to enter into’ the 1970 contract and an injunction restraining the defendant from furthering its execution and either ordering it to seek rescission through court action or declaring the contract void. . . .

‘C. The first amended complaint

‘The first amended complaint, also before us at this time, repeats by reference all of the charging allegations of the original complaint and also incorporates the allegations of the complaint in intervention pertaining to the lower American, its recreational use, the American River Parkway Plan, the availability of Sacramento River water to meet EBMUD needs and the decision of the California Water Resources Control Board. The amended complaint seeks the same relief on the same legal theories as the original complaint.’

To recapitulate—plaintiffs' claims are essentially that EBMUD's contemplated activities 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 fullest 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 divert their supplemental supply from an upstream 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.’

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 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 constitutionally prohibited use of the state's water resources if we are to agree with respondents 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, section 3, was adopted.

IS PRESERVATION OF THE ENVIRONMENT AMONG THE INTERESTS COMING WITHIN THE PROTECTION OF ARTICLE XIV, SECTION 3 OF THE CONSTITUTION?

Article XIV, section 3, respondents 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 Herminghaus 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 litigation since the enactment of article XIV, section 3, two years later, has so far involved traditional property claims to water between riparian owners and appropriators, or between prior and subsequent appropriators,, 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 California's rapidly diminishing water resources 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 opportunities 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 tribunal for the first time. The fact that it is one that the courts have not heretofore been called upon to determine is understandable, 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 litigation. We begin our analysis, therefore, from a historical perspective.

Water has, of course, always understandably 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 the trial judge; also, in the Supreme Court's opinion in Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 136–138, 60 Cal.Rptr. 377, 429 P.2d 889, a case that will be more appropriately discussed elsewhere in this opinion. Without detailed discussion here, we observe that the decisions prior to the adoption of the constitutional 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 purposes. 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 development, adhered to the rule ‘that in a controversy between a riparian owner and an appropriator 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 riparian owners, each was limited to a reasonable 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. City of Santa Barbara, supra, 217 Cal. 673 at p. 698, 22 P.2d 5.) Immediately following the Herminghaus decision the Legislature in 1927 proposed an amendment to the Constitution by adding section 3 of article XIV. 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 effort ‘on the part of the state, in the interest 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, including 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. 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 P.2d 486, 491: ‘1. The right to the use of water is limited to such water as shall be reasonably required for the beneficial use to be served. 2. Such right does not extend to the waste of water. 3. Such right does not extend to unreasonable use or unreasonable method of use or unreasonable method of diversion of water. 4. 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 division 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 supply is limited public interest requires that there be the greatest number of beneficial uses which the supply can yield.’ (Peabody v. City of Vallejo, 2 Cal.2d 351 at pp. 367–368, 40 P.2d 486 at p. 491, emphasis added.)

This language is clear and can hardly be misunderstood. The court in Peabody reversed a judgment of the trial court granting plaintiffs an absolute injunction, however, holding that other forms of relief were available and would be adequate, and directing the trial court on remand to determine the rights of the parties ‘in harmony with the new constitutional policy of conservation of waters . . ..’ (Peabody v. City of Vallejo, supra, 2 Cal.2d 351 at p. 383, 40 P.2d at p. 499.)

The Supreme Court reiterated the proposition 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, therefore, is that the courts have generally been acutely aware of the necessity for flexibility in construing the law to keep pace with the needs and transformations constantly taking place in our rapidly changing society.

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 Article 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 Article XIV, Section 3, do not preclude such a view and this appears to be the interpretation of the State Water Resources Control Board, an interpretation entitled to considerable respect. See Decisions 1379 and 1400.' (Emphasis added.)

But, he reasoned, since no cases have so far reached the appellate level to which article 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 broadly construe it to apply to other water disputes 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 decide whether the constitutional provision has any scope of operation beyond the resolution of such claims. [¶] This argument may be available to an appellate court. However, as I have tried to indicate, the provision throughout its history has been viewed as dealing with asserted water rights and, specifically, as extending the rule of reasonableness to contests between riparian owners and appropriators. I have no basis for now turning the provision into something very different.’ (Emphasis added.)

The question as to whether or not article XIV, section 3, may be properly interpreted to encompass claims based upon environmental 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 interpretation that ‘constitutions, like laws, must be construed that full force and effect shall be given to every portion thereof. The legal intendment is that each and every sentence and clause has been inserted for some useful purpose, and when rightly understood 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—a construction we are admonished to avoid.10 Furthermore, these are the two sentences that are incorporated alone in the 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 we come to the third sentence, the language of which is isolated from the rest of the text to become section 101 of the Water Code. This dichotomy appears to be clear also from the very title given to the amendment: ‘Conservation of water resources; restriction of riparian rights.’ We must therefore construe this division as indicating that the first two sentences are 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 state for the benefit of the public at large is also spelled out in other provisions of the Water Code itself. For example, under the same heading, ‘General State Policy’, section 104 provides, ‘It is hereby declared that the people of the State have a paramount 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 public 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 determine in what way the water of the State, both surface and underground, should be developed for the greatest benefit.’ (Emphasis added.)

Moreover, the Legislature definitely recognized 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 decared 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, recreational, fishery or wildlife values, shall be preserved in their free-flowing state, together with their immediate environments, for the benefit and enjoyment of the people 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 added.)

The Legislature has thus interpreted article XIV, section 3, of the Constitution as extending the rule of reasonableness of use to include a beneficial public use not heretofore specifically mentioned in the decisions. Furthermore, the provisions of the California Wild and Scenic Rivers Act obviously have nothing to do with claims to property rights in waters.12

It is well settled that ‘When a constitutional provision is susceptible of more than one reasonable interpretation, an interpretation placed upon it by the Legislature is of persuasive significance.’ (Miro v. Superior 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 Mum. Water Dist., supra, 67 Cal.2d 132, 60 Cal.Rptr. 377, 429 P.2d 889, seems to support rather than to preclude a broad interpretation of the amendment. In that connection, the court stated, ‘Although, as we have said, what is a reasonable use of water depends on the circumstances 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 conservation of water in this state, an inescapable reality of life quite apart from its express 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 Supreme 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 asserted no individualized harm to itself or its members, it nevertheless recognized that: ‘Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental 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.Ct. 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, ‘. . . ‘Obviously, it is impossible for this court or any court to cover, in three or four decisions, 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 number 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 realistically ‘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 Angeles 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.)

This salutary rule has perhaps been most aptly explained in the following language quoted in the Supreme Court with approval in People v. Western Air Lines, supra, 42 Cal.2d 621 at page 635, 268 P.2d 723 at page 731: “. . . A constitution is intended to meet and be applied to any conditions and circumstances as they arise in the course of the progress of the community. The terms and provisions of constitutions are constantly expanded and enlarged by construction to meet the advancing affairs 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 holding 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 welfare requires that all of ‘the water resources 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 REQUIRED UNDER THE AMENDMENT UPON A PROPER SHOWING AS A METHOD OF PREVENTING WASTE OR THE UNREASONABLE USE OF WATER?

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 predicated on EBMUD's determination not to undertake the development of facilities for 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 meed for additional water supplies from other sources, including the American River.13 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 amendment and its statutory counterpart, Water Code section 100.

Plaintiffs' first cause of action is therefore 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 sustained after the trial judge, prompted by what he acknowledged to be judicial restraint, 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 allegations 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 conclusions 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 EBMUD to adopt a program for recycling its water is ipso facto a violation of article XIV, section 3. What they do say is simply that they have set forth sufficient facts in their pleading to entitle them to proceed to trial so that the trial court can determine 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 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.’ (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 committing waste is one that is imposed on all water users, including those who may have none of the traditional property rights in water. ‘The duty not to commit waste is enjoined on all users of water. An accepted 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 considerable return or effect, and to use without 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.)

The recycling or reclamation of water as a conservation measure is, of course, a relatively new concept. Its technological progress in recent years, however, has been of such significance that the Declaration of Policy in California's Water Reclamation Law (Wat.Code, § 13500 et seq.) now includes the following Legislative finding: ‘§ 13511. The Legislature finds and declares that a substantial portion of the future water requirements of this state may be economically met by beneficial use of reclaimed water. [¶] The Legislature further finds and declares that the utilization of reclaimed water by local communities 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 development of ‘new basic water supplies' as that term is used in Chapter 5 (commencing with Section 12880) of Part 6 of Division 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, become a waste of water at a later time.’ (Tulare Dist. v. Lindsay—Strathmore Dist. (1935) 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 be presented by both parties whether respondent, in refusing to reclaim its waste water, is making a reasonable or unreasonable use of its existing water resources in the face of today's changing conditions. ‘Likewise, what is a reasonable or unreasonable 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 reasonable, public convenience and necessity, and numerous other problems which in their nature are not subject to precise definition but 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 Joslin case, ‘What is a reasonable use or method of use of water is a question of fact to be determined according to the circumstances in each particular case.’ (Joslin 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 respondents would have us construe as deciding 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 Pasadena's failure to recapture certain storm waters was a violation of article XIV, section 3. The point was of such relative unimportance 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 encompassed 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 of support a contrary conclusion. In any event, in the light of the remarkable changes in technology regarding reclamation 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 connection with their first cause of action. It may very well be, however, that at a trial they may not be able to offer sufficient evidence to demonstrate that recycling or reclaiming water has yet become an economically practical or feasible method of preventing waste in connection with respondent EBMUD's operations.

Elsewhere we pointed out that the judgment 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 objection, the demurrer should have been overruled.. (Shook v. Pearson (1950) 99 Cal.App.2d 348, 221 P.2d 757; also see the authorities 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, however, 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 AUTHORITY TO PURCHASE FEDERAL PROJECT WATER MUST BE DETERMINED UNDER FEDERAL LAW?

The single cause of action asserted 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 divert water from the American River under contracts with the U.S. Bureau of Reclamation. Respondents' contention that Sacramento County lacked standing to intervene 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 unreasonable diversion that could be easily avoided by taking the water from a downstream location.

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 contracted with the U.S. Bureau of Reclamation to buy water in the future from a water project that the Bureau is in the process 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 legality of the project itself is not under attack 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 Frasno 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 supremacy ‘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 adversely 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 complaint 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 likewise reached this conclusion with some reluctance may be of little solace to appellants, however.

The principal authorities that seem to compel this decision are a series of appellate decisions involving the validity of certain contracts entered into between two state irrigation districts and a water district 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 California Supreme Court in Ivanhoe Irr. Dist. v. All Parties (1957) 47 Cal.2d 597, 306 P.2d 824 (hereinafter ‘Ivanhoe I’), upheld the validity of the contracts there in question. Its opinion turned on an interpretation of section 8 of the Reclamation Act of 190215 which provides that the Act is not to be construed as interfering with state laws ‘relating to the control, appropriation, use, or distribution of water used in irrigation, . . .’ The contracts incorporated the requirements of section 5 of the Reclamation Act16 and provided that the project water shall not be furnished to lands in excess of 160 acres in single ownership. In effect, Ivanhoe I held that section 8 overrides all other sections of the Reclamation Act. Applying a ‘trust theory’ under state law, it puroprted to hold that the Federal Government could acquire no title to appropriative water rights free of a trust in the State of California for the benefit of its people. (Id. at p. 620, 306 P.2d 824.) From this premise, it reached the conclusion that the excess 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 imposed by the State. To read § 8 to the contrary would require the Secretary to violate § 5, the provisions of which, as we shall see, have been national policy for over half a century. Without passing generally on the coverage of § 8 in the delicate area of federal-state relations in the irrigation field, we do not believe that the Congress intended § 8 to override the repeatedly 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 theory’, 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 United 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 owners of water rights by state law, was erroneous.' (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 section 8 of the Reclamation Act was also erroneous. In this connection, it quoted the following key language from the United 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 reclamation 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 operations 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 capacity to contract to buy the water under state law, Ivanhoe II pointed out that state statutes 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 supremacy17 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 federal funds has lawfully developed water—project water—that without the project would not have been developed. The United States and the State of California have provided by appropriate legislation for entering into contracts regarding this water, . . . This water belongs to or by appropriate 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 lawfully may contract to sell water that it 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 possesses such power. That holding is binding upon this court.’ (Ivanhoe Irr. Dist. v. All Partices, 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' contention that the authority of EBMUD as a state-created agency to contract with the United States for water is, in the first instance, 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 EBMUD 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 partly 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.) Furthermore, a district ‘may enter into contracts and cooperate with, and accept cooperation from, the United States, or any department, instrumentality, or agency thereof, in the construction, maintenance, and operation, of any such enterprise in accordance with any legislation which Congress may have heretofore adopted or may hereafter adopt . . . [and] may do any and all things necessary in order to avail itself of such aid, assistance, and cooperation under any federal legislation now or hereafter enacted.’ (Pub.Util.Code, § 12844.)

In Ivanhoe II, the court noted that Water Code section 23195 authorized irrigation districts to enter into contracts with the United States. (Ivanhoe Irr. Dist. v. All Parties, supra, 53 Cal.2d 692 at p. 706, 3 Cal.Rptr. 317, 350 P.2d 69.) It also noted 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 irrigation 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 accordance with the applicable acts of Congress, the rules and regulations of the Secretary of the Interior thereunder, and the provisions 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 correct. The order dismissing the complaint is reversed and the order dismissing the complaint in intervention is affirmed. Plaintiffs are to recover their costs on appeal from respondents. Respondents are to recover their costs on appeal from the intervenor-appellant to the extent their costs relate to the appeal of the intervenor.

FOOTNOTES

FOOTNOTE.  

1.  Originally, there were four individual plaintiffs and appellants. The appeal as to appellant Gerald Meral 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 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.

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 support a claim for relief.

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.

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 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.’

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

7.  The statute referred to in Herminghaus was the so-called Water Commission Act of 1913 (Stats.1913, p. 1012). Under sections 11 and 42 of that Act appellants asserted the right to reservoir and store practically unlimited amounts of San Joaquin River water. The court held that the exercise of police powers by the legislative and unreasonably destroy the vested rights of the riparian owners in private property. (Herminghaus v. South. 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 system for the equitable adjustment of rights and uses in its flowing streams with a view to the conservation, development, and distribution of the dynamic forces and generative and fertilizing fructibilities of their waters, it might well be argued that public policy, public interest, 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.)

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 plaintiffs would therefore not be deprived of any beneficial use of water to which they were entitled.

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 municipal purposes. Plaintiffs asserted a right to have all of the waters flow without interruption.

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 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. 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 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.’

11.  A section of the American River and the lower American River were designated as components of the system. (See Pub.Resources Code, § 5093.54, subd. e.)

12.  Earlier, the Legislature dramatically manifested its anxiety over the treat of environmental blight by the passage of the Environmental Quality Act of 1970 (see Pub.Resources 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 ‘governmental agencies at all levels to develop standards and procedures necessary to protect 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 activities, . . .’ (Pub.Resources Code, § 21001, subd. c.)

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 determined by the Contraction Officer, increase the quantities of water to be delivered by the United States.’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 interference 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.

14.  For an excellent current discussion of the growing need for water reclamation for both conservation purposes and environmental protection, 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 excerpted 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 and partially achieve this goal. However, an even more pronounced step towards true environmental protection and water conservation will result from increased reclamation of waste water—the treatment and reuse of our municipal, industrial, and agricultural water supplies. [¶] Increased reclamation of waste water can mean fewer pollutants discharged to receiving waters. Reuse 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.’

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 was affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of water acpuired 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.' (Ivangoe Irrig. Dist. 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 hundred and sixty acres to any one landowner, and no such sale shall be made to any landowner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land, and no such right shall permanently attach until all payments therefor are made.’ 32 Stat. 389, 43 U.S.C. § 431. This provision was substantially re-enacted in § 46 of the Omnibus Adjustment Act of 1926, 44 Stat. 649, as amended, 70 Stat. 524, 43 U.S.C. § 423e.' (Ivanhoe Irrig. Dist. v. McCracken (1958) 357 U.S. 275, 277–278, 78 S.Ct. 1174, 1177, fn. 2.)

17.  The object of the supremacy clause, as applied to federal contracts, was well put in U. S. 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, confusions and conflicts which would follow if the Government's general authority were subject to local controls. The validity and construction 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 questions of federal law not controlled by the law of any State.’

LAZARUS, Associate Justice* FN* Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

MOLINARI, P. J., and SIMS, J., concur.