## Facts

- In 1927, the State of California filed an application to appropriate water from a river system near Sacramento, later associated with the American River/Sacramento–San Joaquin Delta watershed.
- More than 75 years later, the State Water Resources Control Board (SWRCB) assigned that long-pending state-filed application to El Dorado Irrigation District and El Dorado County Water Agency (together, El Dorado), giving El Dorado a 1927 priority date.
- The SWRCB issued El Dorado a permit based on the assigned application, but included “Term 91,” a standard permit condition used in parts of the Delta watershed.
- Term 91 curtails diversions under the permit when releases in the system include “stored or imported” water being made by the federal Central Valley Project (CVP) and the state State Water Project (SWP) to meet Delta water-quality and flow objectives.
- The CVP and SWP were built to move large volumes of water from the Delta to other regions of the state where demand is high.
- After the SWRCB adopted updated Delta water-quality standards in the 1970s, the projects at times had to release stored water or reduce exports to maintain required Delta flows and salinity conditions.
- Water users and agencies associated with the projects opposed new upstream/diversion applications in the Delta watershed because additional diversions could increase the amount of project releases needed to meet the Delta standards.
- The SWRCB used Term 91 as an interim administrative method to prevent new or changed diversions from taking water that would otherwise be project water released for compliance.
- El Dorado filed an administrative mandamus action challenging Term 91, arguing the condition violated California’s appropriative priority system because it curtailed El Dorado (with a 1927 priority date) while allowing junior project-related rights to continue.
- The trial court ordered the SWRCB to delete Term 91 from El Dorado’s permit; the SWRCB and aligned parties appealed, and El Dorado cross-appealed.

## Issues

1. Whether including Term 91 in El Dorado’s permit violated the California “first in time, first in right” priority rule by curtailing a permit with a 1927 priority date while junior project uses continued.
2. Whether an appropriator with a senior priority date has a right to divert “stored or imported” water that was previously stored or brought into the system by the CVP/SWP and released to meet Delta water-quality and flow requirements.
3. Whether the watershed “area of origin” statutes required removal or narrowing of Term 91 because El Dorado’s diversion is within the watershed of origin.

## Decision

- The Court of Appeal reversed the portion of the judgment that directed the SWRCB to remove Term 91 and held the SWRCB could include Term 91 in El Dorado’s permit.
- The court held the appropriative priority rule governs rights to natural flow (and water that has become available as abandoned flow), not water that consists of stored or imported supplies released by others.
- Because El Dorado had no right to take stored/imported project water, Term 91 did not unlawfully reorder priorities; it prevented diversion of water that was not part of what El Dorado’s priority could claim.
- The court rejected El Dorado’s reliance on area-of-origin protections to claim priority over project releases made for water-quality and instream flow requirements, concluding those statutes did not grant El Dorado a right to divert stored/imported project water released for compliance.
- The court otherwise left intact the SWRCB’s ability to use permit conditions to avoid injury to other legal users and to administer compliance-related releases.

## Legal Principles

- The “rule of priority” in California appropriative water law applies to natural flow (and abandoned flow) in a watercourse; it does not give a senior user the right to take water that was previously stored or imported by another.
- A riparian or appropriative right does not include an entitlement to stored/imported project water merely because that water is physically present in the channel during a compliance release.
- The SWRCB may include permit conditions that prevent injury to other legal users and that avoid diversion of stored/imported water released by others for regulatory compliance in the Delta.
- Area-of-origin (watershed protection) statutes may be asserted in appropriate circumstances against export of water from the watershed, but they do not give local municipal or irrigation uses priority over releases required for water quality or instream beneficial uses within the watershed of origin.
- Standard permit conditions can be valid when they operate to ensure a permittee diverts only water it is legally entitled to divert, rather than capturing supplies created by storage or importation by others.

## Conclusion

El Dorado’s 1927 priority date did not entitle it to divert stored or imported water released by the CVP/SWP to meet Delta water-quality and flow standards, so Term 91 did not violate the priority system; it lawfully prevented El Dorado from taking project water and the Court of Appeal reversed the trial court’s order deleting the condition.


El Dorado Irrigation District v. State Water Resources Control Board, 142 Cal. App. 4th 937 (2006)