STATE WATER RESOURCES CONTROL BOARD
BOARD MEETING -- DIVISION OF WATER RIGHTS
June 19, 1997
ITEM 9: PROPOSED WATER RIGHT ORDER REGARDING PETITION FOR RECONSIDERATION OF ORDER APPROVING REVISIONS TO TABLE 13 OF DECISION 1632 -- CARMEL RIVER WATERSHED IN MONTEREY COUNTY
DISCUSSION: On July 6, 1995, the State Water Resources Control Board (SWRCB) adopted Decision 1632. The decision approved Application 27614 by the Monterey Peninsula Water Management District (MPWMD) for the proposed New Los Padres Project. Among other matters, the decision provides that the permit issued for Application 27614 will be junior in priority to persons whose application were filed later than Application 27614 and who are listed in Table 13 of the decision. For each listed person, the reversal of priority is for only a specific amount of water.
Condition 10 of the decision provides a procedure for persons listed in the table to seek an adjustment to the amount specified in the table, including persons for whom no amount is listed. The Chief, Division of Water Rights (Chief) is authorized to make these determinations pursuant to criteria provided by condition 10. On March 21, 1997, the Chief issued the Order Approving Revisions to Table 13 of Decision 1632 (Order). Thereafter, on or about April 20, 1997, nine petitions for reconsideration were filed seeking review of the order.
The proposed order denies all petitions on the grounds they fail to raise substantial issues for review. In the proposed order the SWRCB would find that: (1) The 1995 condition 10 criteria adopted by Decision 1632 are final and not subject to review via reconsideration of the Chief's Order; (2) The Chief's Order does not address whether subsurface water in Tularcitos Creek and its tributaries is jurisdictional to the SWRCB for the purpose of approving applications to appropriate water; (3) The Chief's Order does not limit pumping from Holt Ranch wells due to any finding made as to the availability of water in the Tularcitos watershed; (4) Only persons listed in Table 13 are entitled to benefit from the priority reversal vis a vis Application 27614; (5) Applicants for the use of water can not claim water under the rule which provides that the measure of an existing water right is the amount of water applied to reasonable beneficial use; (6) The Chief's Order is not subject to CEQA; and (7) Table 13 amounts should not be revised pursuant to new stipulations with MPWMD unless each stipulation is accompanied by meter readings or well production records demonstrating the amount of water actually used.
POLICY ISSUE: Should the SWRCB adopt the proposed order denying the petitions for reconsideration?
FISCAL IMPACT: The work required by the proposed order is funded within the existing budget of the Division of Water Rights.
RWQCB IMPACT: None
STAFF RECOMMENDATION: Adopt the proposed order denying the petitions for reconsideration.
DRAFT June 10, 1997
STATE OF CALIFORNIA
STATE WATER RESOURCES CONTROL BOARD
ORDER: WR 97-
SOURCE: Carmel River COUNTY: Monterey
In the Matter of Petitions for
Reconsideration of Order Making Determinations Pursuant to
Condition 10 of Decision 1632
Wolter Properties Limited; Michael P. Groom, Trustee for Frederick and Patricia L. Holt; A. C. and Linda Markkula; Korean Sambosa Buddhist Temple; Homestead Homeowners Ass'n.;Chugach & Company; Richard Evans; Ronald R. Koontz; Novella Nicholson; and Bruce and Beth Sterten, Petitioners.
ORDER AMENDING AND AFFIRMING AS AMENDED
THE MARCH 21, 1997, DETERMINATIONS
MADE PURSUANT TO CONDITION 10 OF DECISION 1632
BY THE CHIEF, DIVISION OF WATER RIGHTS
AMENDING THE TABLE 13 WATER ALLOTMENTS
BY THE BOARD:
1.0 INTRODUCTION
On July 6, 1995, the State Water Resources Control Board (SWRCB) adopted Decision 1632. The decision approved Application 27614 by the Monterey Peninsula Water Management District (MPWMD) for the proposed New Los Padres Project. Among other matters, the decision provides that the permit issued for Application 27614 will be junior in priority to persons whose applications were filed later than Application 27614 and who are listed in Table 13 of the decision. For each listed person, the reversal of priority is for only a specific amount of water.
Condition 10 of the decision provides a procedure for persons listed in the table to seek an adjustment to the amount specified in the table, including persons for whom no amount is listed. The Chief, Division of Water Rights, (Chief) is authorized to make these determinations pursuant to criteria provided in condition 10.
On March 21, 1997, the Chief issued the Order Approving Revisions to Table 13 of Decision 1632 (Order). Thereafter, on or about April 20, 1997, petitions for reconsideration were filed on behalf of:
2.0 LAW APPLICABLE TO PETITIONS FOR RECONSIDERATION
Petitions for reconsideration of SWRCB decisions must be: (a) filed within 30 days following adoption of a decision and (b) accepted or denied within 90 days of adoption. (Wat. Code § 1122.) Reconsideration may be sought for the following causes:
If an evidentiary hearing is sought, the petition must include an affidavit or declaration stating that additional evidence is available that was not presented to the SWRCB and the reason it was not presented. In addition, a general statement of the nature of the evidence and facts to be proved must be included. (Id. § 769(b).)
The SWRCB may refuse to reconsider a decision or order if the petition fails to raise substantial issues. In addition, after review of the record the SWRCB may: (a) deny a petition upon finding that a decision or order was appropriate, (b) set aside or modify the decision or order, or (c) take other appropriate action. (Id. § 770.)
3.0 DECISION 1632 IS A FINAL BOARD DECISION
Absent express statutory authority, an administrative agency cannot reconsider final decisions. (Azadigian v. Workers' Compensation Appeals Board (1992) 7 Cal.App.4th 372, 378-379; [8 Cal.Rptr.2d 643, 647].) Whether a decision is final depends upon the statutory scheme from which an agency derives its authority. (Lindell Co. v. Board of Permit Appeals (1944) 23 Cal.2d 303, 323 [144 P.2d 4, 14].)
On July 6, 1995, the SWRCB adopted Decision 1632. The SWRCB's authority to order reconsideration of a decision or order lapses 90 days after an order or decision is adopted. (Wat. Code § 1122. Footnote1) No petition for reconsideration was accepted by the SWRCB or is pending before the SWRCB on adoption of Decision 1632. Thus, condition 10 of Decision 1632 is final. Footnote2 Because condition 10 is final, petitions seeking reconsideration of the criteria in condition 10 are not timely and cannot be accepted by the SWRCB. Petitions for reconsideration of the Chief's Order must be based on whether the Chief acted in accordance with the criteria provided in condition 10.
4.0 REQUIREMENTS OF CONDITION 10
The Chief was required to act in accordance with the condition 10 delegation when issuing the Order revising Table 13. Petitioners seeking more water than is provided by the Order must demonstrate that they are entitled to such additional water in accordance with the criteria provided by condition 10. Condition 10, provides in pertinent part:
"The priority of this permit [Application 27614] shall be junior to any permit issued on the application set forth in Table 13 or for the persons named Footnote3 in Table 13 for an amount of water not to exceed the quantity set forth in the column titled 'Quantity Reserved by SWRCB For Future Appropriations'. Footnote4 Applicants can request the State Water Resources Control Board (SWRCB) to modify the amounts in this column in accordance with the procedures in this condition.
"Persons identified in Table 13 that have not filed an application to appropriate water must file an application by December 29, 1995 to benefit from this condition. To the extent such applicants and persons claim riparian, overlying, pre-1914 appropriative or other rights to use the water, they shall not be entitled to a post-1914 appropriative right for water in excess of established quantities of use as a result of this permit condition. Any priority obtained for a permit by virtue of this condition shall be void if the permittee and/or others divert more water under the permit and claimed underlying rights than is authorized on the face of the permit; however, the priority shall not be voided for the diversions of de minimis amounts which can reasonably be attributed to operational uncertainties.
"Upon request by an applicant, a protestant, or the District, notification to the District and petitioner, and the opportunity for comment, the SWRCB will review whether the amount set forth in the column entitled 'Quantity Reserved by SWRCB For Future Appropriations' should be increased or decreased, at such time as an application is processed; however, no reconsideration will be provided for amounts based upon a stipulation between the District and an applicant, except in those instances where the stipulation is subsequently revised or new stipulation is entered into by the District with respect to Table 13 quantities.
"Request for review shall be submitted and accompanied by prima facie evidence of established quantities of use to the Chief, Division of Water Rights, on or before December 29, 1995. Requests for review submitted after this date shall not be considered. The criterion for review shall be whether the applicant had an established reasonable beneficial use of water and the amount of such use Footnote5 on or before November 22, 1994. Only recorded water use for the period January 1, 1987 Footnote6 through November 22, 1994 shall be considered. The Chief, Division of Water Rights, is delegated authority to modify the quantities identified in Table 13." (Emphasis added; the words in "[]" are added for clarification.)
Except for their numbering, the footnotes to condition 10 are identical to those found in Decision 1632.
5.0 FREDERICK AND PATRICIA L. HOLT (HOLT), A. C. AND LINDA MARKKULA (MARKKULA), AND WOLTER PROPERTIES LIMITED PARTNERSHIP (WOLTER). Footnote7
5.1 Petitioners' Request and Prior SWRCB Actions.
The Holt, Markkula, and Wolter petitions' request they be allocated 210, 454, and not less than 60 acre feet per annum (afa), respectively. Petitioners are listed in Table 13; however, no amount of water is allocated because the record did not contain sufficient information. (Decision 1632, p. 47, fn. 56.) In accordance with condition 10, petitioners each filed an application to appropriate water prior to December 29, 1995. The Holt's application requests 387 afa, the Markkula's application requests 454 afa, and Wolter requests 96 afa. Footnote8 Based on meter records made available to the SWRCB and in accordance with condition 10, the Chief's Order allocated 10.6 afa to the Holts, 88.5 afa to the Markkulas, and 37.4 afa to Wolter.
5.2 Grounds for Petitions.
Petitioners Holt and Markkula contend that: (1) the SWRCB abused their discretion by ignoring the Protest Dismissal Agreement between MPWMD and the: (i) Holt Trust and (ii) Markkula, (2) the Order is inconsistent with the SWRCB's proposed Declaration of Fully Appropriated Streams for the Carmel River, (3) allocation of 10.6 afa to the Holt Trust is not supported by substantial evidence, and (4) when issuing the Order allocating water the Chief failed to comply with CEQA.
Petitioner Wolter contends that: (1) the measure of a water right is the amount of water put to reasonable beneficial use, (2) the allocation of 37.4 afa to Wolter is not supported by substantial evidence, and (3) when issuing the Order allocating water, the Chief failed to comply with CEQA.
5.3 The Protest Dismissal Agreements Between MPWMD and the: (i) Holt Trust and (ii) Markkula Are Not Relevant to Whether the Chief Acted Within the Scope of His Delegation Under Condition 10.
Petitioners state that the protest dismissal agreements between MPWMD and the petitioners expressly provide that the scope of Decision 1632 would not address the subsurface water in Tularcitos Creek. Petitioners then assert that the SWRCB abused its discretion by ignoring the protest dismissal agreements between MPWMD and the petitioners.
The dismissal agreements actually state:
"The parties acknowledge and agree that the issues and the proposed testimony in this proceeding are not required to address and do not address State Water Resources Control Board jurisdictional questions pertaining to subsurface waters in the Tularcitos Creek drainage or the drainage of its tributaries Rana and Agua Mala Creek."
The agreements do not state that the SWRCB will or will not address jurisdictional questions concerning Tularcitos Creek. The agreements reflect an understanding among only the signatories. Further, the SWRCB is not legally constrained from addressing an issue merely because several parties think it is unnecessary; nevertheless, Decision 1632 did not address whether subsurface water in Tularcitos Creek and its tributaries was jurisdictional to the SWRCB for the purpose of approving applications to appropriate water from state waters. Thus, we find that this contention is irrelevant because Decision 1632 did not address whether subsurface water in Tularcitos Creek and its tributaries is jurisdictional to the SWRCB for the purpose of approving applications to appropriate water.
5.4 The Chief's Order Does Not Limit Pumping From Holt Ranch Wells Due to Any Finding Made as to the Availability of Water in the Tularcitos Watershed.
On January 22, 1997, a hearing was held by the SWRCB to consider proposed staff amendments to the Fully Appropriated Streams Declaration. The proposed amendments would add the Carmel River to the list of streams declared to be partially or fully appropriated. The SWRCB has not as yet been presented with a proposed order adding the Carmel River to the Fully Appropriated Streams Declaration.
Petitioners contend that the availability of water from the Tularcitos Basin for the Holt Ranch is confirmed by a staff-proposed SWRCB Declaration of Fully Appropriated Streams for the Carmel River and its tributaries. Footnote9 The creek is tributary to the Carmel River. Petitioners also contend that the Order which treats the Tularcitos Basin as fully appropriated is an abuse of discretion, denies petitioners a fair hearing, and violates petitioners' constitutional guarantees of equal protection and due process of law. Footnote10
Reconsideration can be sought only after a decision or order is adopted by the SWRCB. (Wat. Code § 1122.) Neither the SWRCB nor anyone delegated to act for the SWRCB has adopted an order declaring the Carmel River to be fully appropriated. It is premature for petitioners to seek reconsideration for a matter that has not been acted on by the SWRCB or anyone delegated to act for the SWRCB. Footnote11
The Order adopted by the Chief does not directly or indirectly address whether the SWRCB has jurisdiction to issue water right permits for applications to appropriate water from subsurface sources in the Tularcitos Creek watershed. No permits are required and no permits should be issued to petitioners if their wells are only pumping subsurface water over which the SWRCB has no permit jurisdiction. Petitioners have been informed of the option to withdraw their applications but have not done so. Footnote12 (Memo dated March 21, 1997, by Katherine Mrowka, pp. 7-8. Footnote13) Thus, the SWRCB finds that the order adopted by the Chief does not limit pumping from Holt Ranch wells due to any finding made as to the availability of water in the Tularcitos watershed.
5.5 The Petitions Have Not Raised a Timely Challenge to the Adoption of Condition 10 in Decision 1632. The SWRCB Intended That Only Persons Listed in Table 13 Benefit From Priority Reversal Vis-à-Vis Application 27614.
Petitioners contend that the SWRCB erred when it failed to adopt a condition providing that all applications are superior in priority to Application 27614.
Applications filed first in time are first in right. (Wat. Code §§ 1450, 1455.) This priority may be adjusted in special circumstances (id. § 1257.) The SWRCB made such findings in support of the persons listed in Table 13. Priority reversal was limited to only those persons listed in Table 13 and did not include all applications which might be filed subsequent toApplication 27614. (Decision 1632, pp. 41-50, 97-98.) Thus, we find that condition 10 clearly reflects the SWRCB's intent to limit priority reversal to those persons listed in Table 13.
Whether the SWRCB acted properly when it adopted Decision 1632 is not an issue that can be properly raised when petitioning for review of the Chief's Order. The above-referenced protest dismissal agreements are not relevant to whether the Chief acted within the scope of his delegation under condition 10. The delegation only authorizes the Chief to make adjustments in the amount of water listed in Table 13 water right applications. The delegation does not authorize the Chief to make MPWMD's Application 27614 junior in priority to applications filed later in time than Application 27614. As noted in section 3.0, supra, Decision 1632 is a final SWRCB decision. Thus, the SWRCB finds that the time for challenging the conditions within Decision 1632 has lapsed. (Wat. Code § 1122.) Footnote14
5.6 The Chief's Order Allotting 10.6 AFA to the Holt Trust and 37.4 AFA to Wolter Is Supported by the Law and the Relevant Evidence Submitted on Behalf of the Trust.
Petitioners contend that: (1) the measure of a water right is the amount of water put to reasonable beneficial use (Simons v. Inyo Cerro Gordo Co. (1920) 48 Cal.App. 524, 523-8 [192 P. 144]) and (2) the Order allotting 10.6 afa to the Holt Trust and 37.4 afa is not supported by substantial evidence.
Among other matters, Simons stands for the proposition that the measure of a water right is the amount of water put to reasonable beneficial use. While this is sound law, it is applicable only to persons with existing rights to the use of water. The rule is not applicable to an application to appropriate water. An applicant has no right to the use of water under the modern Water Code until a permit is issued by the SWRCB. (Wat. Code §§ 1225, 1052(a), U.S. v. Fallbrook PUD (D.C. 1958) 165 F.Supp. 806, 855; People v. Shirokow (1980) 26 Cal.3d 301, 307 [162 Cal.Rptr. 30, 33-34].) Although petitioners have filed applications with the SWRCB, the applications have not been approved. A person who diverts and uses water subject to the SWRCB's permitting authority without complying with the requirements of the Water Code cannot be assured that a permit will be issued for the amount being diverted and used. For example, Water Code section 1375 requires the SWRCB to find that unappropriated water is available for appropriation. (Water Code §§ 1200-1202, 1375(d).) (Also see discussion in fn. 10.) Thus, neither Simons nor the Water Code assures petitioners any particular amount of water. Footnote15 Footnote16
The amount of water allotted to the Holt Trust and Wolter is based on petitioners own data. The Chief is required to allocate water based upon: (1) the use of water from January 1, 1987, through November 22, 1994 and (2) upon water use established by meter records or well production records. (Decision 1632, Condition 10, p. 98, fn. 79.) Neither petitioner Holt nor Wolter point to any specific meter or well production data that they allege would support a finding that more water should be allotted under Table 13.
Staff erred when it found that Wolter was entitled to only 37.4 afa; one month of meter readings was inadvertently omitted when determining Wolter's use in accordance with condition 10. Thus, the Chief's Order should have allotted Wolter 38.9 afa.
Wolter's petition objects to the use of meter readings as the basis for determining his use of water under condition 10. He alleges that his meters frequently malfunctioned and underreported the amount of water actually put to use. Footnote17 A declaration is attached in support of this allegation. Footnote18 When determining the amount of water Wolter should be allotted in Table 13, staff initially used the standard water year of highest recorded use, the year commencing October 1993 through November 1994. Footnote19 In response to Wolter's objections to the memo, staff revised Wolter's use figures by using the 12-month period of highest recorded use, November 1993 through October 1994, a nonstandard water year. Footnote20 This increased Wolter's allotment from 25.3 to 38.9 afa, considering the correction noted in the previous paragraph.
As the result of petitioner's continued allegation that the meter readings are unreliable and understate actual use, Wolter's meter readings have been reviewed once again. Two methods were used to test the reliability of Wolter's meter records. First, averages for all months of record were determined, excluding months with zero data. These months were excluded on the assumption there was a problem with Wolter's water meters. Thus, Wolter's apparent water use is increased by excluding months when there are no meter reading from the calculated monthly averages. Using this approach it was determined that Wolter's average annual use was 34.6 afa, less than the 38.9 afa which the Chief's Order should have allocated. Second, Wolter's use was checked by totaling use based on the twelve months, January through December, of highest recorded use irrespective of the year in which the use occurred. This approach tends to result in the selection of pumping data during years of less rainfall and higher pumping. Using this approach, Wolter was determined to have used no more than 47.2 afa, an amount which is 21 percent greater than 38.9 afa. Footnote21 Both these methods of computation tend to confirm that the allocation of 38.9 afa, based on meter readings, is a reasonable approximation of the amount of water Wolter probably used. Thus, the SWRCB finds that Wolter's allocation should not be increased other than to the reflect the correcting in the Chief's Order from 37.4 to 38.9 afa.
What petitioners Wolter, et al. are really contending is that there is nonmetered evidence of water use which it wishes the SWRCB to consider when allotting water. As previously stated, the criteria provided by condition 10 are final and cannot be reconsidered. (See § 3.0, supra.) Thus, we find that the Chief's Order allotting 10.6 afa to the Holts' Trust is supported by the law and the relevant evidence submitted on behalf of petitioners. The SWRCB also finds that the Chief's Order should be modified to allot Wolter 38.9 afa.
5.7 The Issuance of the Order Denying the Reversal in Priority for a Greater Amount of Water Is Not Subject to the Requirements of the California Environmental Quality Act (CEQA). Footnote22
Petitioners allege that the Order: (1) does not allocate sufficient water to sustain existing farming operations Footnote23 and (2) will result in farmland being withdrawn from production resulting in a significant impact. On this basis, petitioners contend that the SWRCB must comply with CEQA prior to allocating petitioners water.
Petitioners seek to require compliance with CEQA, not based upon any adverse impact for what was approved, but on the claimed impact of the Chief's decision not to approve a priority reversal for a greater amount of water. CEQA does not apply to disapprovals. (Pub. Res. Code § 21080(b)(5); Main San Gabriel Basin Watermaster v. SWRCB (1993) 12 Cal.App.4th 1371, 1380-1385 [16 Cal.Rptr.2d 288, 294-296].) Where a request is approved in part and disapproved in part, the applicability of CEQA depends on what is approved, Footnote24 not upon any claimed impacts of the disapproved balance of a request. Thus, we find that the issuance of the Order denying priority reversal for a greater amount of water is not subject to the requirements of CEQA.
6.0 Korean Sambosa Buddhist Temple (Temple) and Homestead Homeowners Association (Association). Footnote25
6.1 Petitioners' Request and Prior SWRCB Actions.
The Temple and the Association request they be allocated 8 and 29.6 afa, respectively. Footnote26 Footnote27 Neither the Temple nor the Association are listed in Table 13: (1) neither petitioner filed an application to appropriate water prior to the approval of Decision 1632; (2) protested Application 27614 by MPWMD; or (3) participated in the hearing on Application 27614. Both petitioners filed applications to appropriate water before the December 29, 1995, condition 10 cutoff date for persons in Table 13. The applications of the Temple and Association seek to appropriate 8 and 29.6 afa, respectively. The Chief's Order does not allocate any water to either the Temple or the Association.
6.2 Grounds for Petitions
Both petitions contend that: (1) under Decision 1632, the SWRCB intended that all persons using established quantities of water should have an opportunity to obtain a water right permit with priority over Permitted Application 27614; and (2) the SWRCB failed to provide the petitioners notice of the proceeding.
6.3 The SWRCB Did Not Intend That All Persons Using Water Prior to the Filing of Application 27614 Could Obtain a Water Right Permit With Priority Over the Application.
Both Decision 1632 and condition 10 include numerous statements indicating that the SWRCB would grant applications junior to Application 27614 a higher priority under only very limited circumstances. Both the body of the decision and the condition state that condition 10 should only apply to persons listed within Table 13. (Decision 1632, pp. 49, 97.) Further, it is clear that the SWRCB wished to limit the reach of the condition in order to protect the viability of the project proposed by MPWMD and the benefits it could afford to the environment. (Id., p. 50.)
Condition 10 is restrictive even for persons listed within Table 13. For instance, persons listed within the table had a deadline by which to file applications or to seek modifications in Table 13 amounts. Further, strict criteria were provided for determining the amounts which would be entitled to a higher priority than Application 27614. Thus, we find that the SWRCB did not intend that all persons using water prior to the filing of Application 27614 could obtain a water right permit with priority over the application.
6.4 Petitioners Were Provided Appropriate Notice of SWRCB Proceedings.
With certain exceptions, all persons who divert and use water under riparian and pre-1914 claims of right are required by law to file Statements of Water Diversion and Use with the SWRCB. (Wat. Code § 5100.) Among other matters, such statements make the SWRCB aware of who may be affected by a water right application. When people comply with section 5100, the SWRCB has a record of their diversion and can provide individual notice when an application is filed which can affect persons diverting under a riparian or pre-1914 claim of right. At the time Decision 1632 was adopted, neither the Temple nor the Association had Statements of Diversion and Use on file with the SWRCB. Because petitioners failed to file Statements and Diversion and Use, the SWRCB did not provide them individual notice of Application 27614.
Riparian and pre-1914 appropriators who fail to comply with section 5100 are provided notice by posting and publication in a local or regional newspaper. (Wat. Code § 1300 et seq., § 1310 et seq., § 1320 et seq.) Notice for Application 27614 was published in the Monterey Peninsula Herald on February 25 and on March 4 and 11, 1986. We need not decide whether the Temple and the Association were provided appropriate notice of SWRCB proceedings on Application 27614. The SWRCB's decision on the application is final and the period for reconsideration has lapsed. (See § 3.0, supra.)
7.0 CHUGACH & COMPANY (CHUGACH), RICHARD EVANS (EVANS), DONALD R. KOONTZ (KOONTZ), NOVELLA NICHOLSON (NICHOLSON), AND BRUCE AND BETH STERTEN (STERTEN)
7.1 Petitioner's Requests and Prior SWRCB Actions.
Petitioners Chugach, Evans, Koontz, Nicholson, and Sterten request they be allocated more water. The petitioners are all listed in Table 13 and have filed applications to appropriate water with the SWRCB. Footnote28 The amount of water requested by each petitioner Footnote29 and the amount allocated in the Chief's Order follows:
Amount Amount
Requested (afa) Allocated (afa)
Chugach 25.2 7.6
Evans 17.5 15.0
Koontz 14.4 0.7
Nicholson 5.1 2.2
Sterten 11.2 5.1
7.2 Grounds for Petitions.
Petitioners contend that condition 10 authorized the Chief to modify the amounts provided for persons in Table 13 based on new or amended stipulations with MPWMD, the holder of permitted Application 27614. Petitioners also contend that the SWRCB should honor the stipulations between Table 13 parties and MPWMD, in keeping with the SWRCB practice to encourage settlement among parties.
7.3 Condition 10, Amendments to Condition 10 and the Transcript.
Before responding to the petitioners' contentions, it may be useful to briefly review the record concerning the adoption of condition 10. As initially proposed, condition 10 did not include a reference to "revised or new" stipulations. (See condition 10, § 4.0, first underlined passage, supra.) The first underlined passage was added during the July 6, 1995, SWRCB meeting. That passage states:
"[N]o reconsideration will be provided for amounts based upon a stipulation between the District and an applicant, except in those instances where the stipulation is subsequently revised or new stipulation is entered into by the District with respect to Table 13 quantities."
The following is an excerpt from the July 6, 1995, transcript at which the SWRCB amended and adopted condition 10:
"Ms. Mrowka: I just want to briefly state we have tried to address the concerns of Alan Lilly and some of the other parties with respect to the fact that some of these parties may be able to enter into stipulations with the District for quantities of water for Table 13, and that we wanted to provide opportunity for them to enter into stipulations specifically with respect to Table 13 quantities and to submit those to the division for purposes of modifying their assignments under Table 13.
"The supplemental materials you just received address that concern, I believe.
"Chairman Caffrey: By that, you mean there is on the errata, there is a change in that order?
"Ms Mrowka: Yes, sir there is. The supplemental materials, there would be a change in page 97. And what it would say now is that there's -- that there's several bases, then, for reconsideration of amounts. You can have reconsideration of an amount based on your actual use records that you submit to us.
"If you are a party who received their assignment based on stipulation with the District and did not receive their assignment based on their well records, then if they entered into a revisal of the particular stipulation, that material could be brought forward for a Table 13 change; or, in fact, if parties entered into a new stipulation over the upcoming few months here regarding Table 13 quantities, they could submit that to us for a reason to modify the Table 13 quantity. So we tried to provide a basis." (July 6, 1995 Transcript, pp. 127-128, emphasis added.)
7.4 The Chief Acted Within the Scope of the Delegation From the SWRCB.
Even after the SWRCB amendment, condition 10 still included the following provision controlling the manner in which the Chief could act under the delegation:
"The criterion for review shall be whether the applicant had an established reasonable beneficial use of water and the amount of such use Footnote30 on or before November 22, 1994. Only recorded water use for the period January 1, 1987 Footnote31 through November 22, 1994 shall be considered. The Chief, Division of Water Rights, is delegated authority to modify the quantities identified in Table 13."
Thus, while persons listed in Table 13 could submit a revised or new stipulation, condition 10 did not authorize the Chief to accept the stipulation in the absence of meter reading or well production validating the actual use of water. We note that the excerpt from the transcript supports the Chief's view that he should apportion water based only upon recorded use. Footnote32 Footnote33 The underlined portion from the transcript envisions that revised or new stipulations would be based upon well records. Footnote34 Thus, we find that the Chief acted within the scope of condition 10's delegation when he disapproved these requests for a reversal in priority for a greater amount of water.
7.5 Condition 10 Does Not Discourage the Parties From Settling Their Differences.
Petitioners contend that, in keeping with SWRCB practices to encourage settlement among parties, the SWRCB should honor the stipulations.
Condition 10 requires the Chief to provide MPWMD a copy of the proposed modifications to Table 13. Further MPWMD could pose objections to increased amounts of water being sought by persons in Table 13. (Condition 10, par. 3.) Revised or new stipulations are one means for resolving differences between MPWMD and persons seeking additional amounts of water over that initially allocated in Table 13 for established uses. Footnote35 Thus, we find that the Chief acted within the scope of the delegation from the SWRCB.
8.0 CONCLUSIONS
Based on the foregoing analysis and findings, the SWRCB finds that the petitions of Wolter, Holt, Markkula, Temple, Association, Chugach, Evans, Koontz, Nicholson, and Sterten failed to raise substantial issues for review and should be denied. The SWRCB also finds that Wolter's (a) allotment of water in the Chief's Order should be increased to 38.9 afa, (b) petition failed to raise substantial issues for review, and (c) should be denied.
ORDER
NOW THEREFORE IT IS ORDERED THAT the quantity of water allocated to Wolter Properties Limited in Table 13, as amended by the Chief's Order, shall be 38.9 afa.
IT IS FURTHER ORDERED THAT the following petitions for reconsideration are denied:
CERTIFICATION
The undersigned, Administrative Assistant to the Board, does hereby certify that the foregoing is a full, true, and correct copy of an order duly and regularly adopted at a meeting of the State Water Resources Control Board held on June 19, 1997.
AYE:
NO:
ABSENT:
ABSTAIN:
_____________________________________ Maureen Marché Administrative Assistant to the Board |
During 1995, reconsideration of SWRCB orders and decisions was governed by Water Code section 1357. Section 1357 also required the SWRCB to accept or reject petitions for reconsideration within 90 days of adoption of an order or decision.
Several petitions for writs of mandate were filed challenging the SWRCB's adoption of Decision 1632. These petitions have no effect on the finality of the decision for the purposes of seeking reconsideration unless the court orders the SWRCB to set aside its decision.
Several persons named in Table 13 do not have an application on file with the SWRCB.
No quantity of water is set forth in Table 13 for Kirk, Lufkin, Lutes, Markkula, Pt. Sur Corporation, Tregea Trust, and Wolter because the hearing record does not contain adequate information; nevertheless, these persons may seek an application under the procedures established herein.
Recorded use shall be based either on records of meter readings or well production records.
Limited meter readings are available for the Carmel River Valley beginning in 1987.
Petitioners Holt and Markkula request a hearing before the SWRCB. The petitions are each supported by two identical declarations. The first declaration is by Robert R. Curry, a professional geologist and hydrologist, and addresses the geology associated with subsurface water in the Tularcitos Basin. Taken at face value, the declaration tends to support the view that the wells used by the Holt and Rana Creek Ranch pump subsurface water over which the SWRCB has no permit authority; however, the declaration does not disclose how close the wells are to Tularcitos Creek and whether the wells are perforated to receive water from surface or subsurface flow in the creek. The second declaration is by Dick Lundy, who manages farming operations on both ranches. His declaration addresses the need for water on both ranches. It is not clear whether petitioners are requesting a hearing to present evidence on these matters. We find that a hearing on these matters would be inappropriate because they are not relevent to whether the Chief acted within the scope of his delegation. The Chief was not delegated authority to decide whether Tularcitos Basin is a part of the Carmel River or to determine the water "needs" of the petitioners. He was only authorized to adjust the amount of water in Table 13 in accordance with condition 10 criteria; such criteria was not based on the need for water or whether the source of the water was from the surface flow or subsurface flow in Tularcitos Creek or the Tularcitos groundwater basin. Thus, the SWRCB's response to these petitions is based on the existing record and on the information provided in their written petitions.
Petitioner Wolter also requests a hearing to present new information. Although its petition alleges that new information is available, which in the exercise of reasonable diligence could not have been produced, the petition fails to provide a statement why the information could have been timely produced. Indeed, declarant Russel T. Wolter, states that with the exception of Mr. Pierce's CONUSE calculations the other data was available but was not submitted because it was not the type of well production data required by condition 10. The CONUSE calculations are provided with the declaration of Mr. Pierce. With the possible exception of PG&E meter records, none of the evidence which petitioner seeks to introduce is the type of meter readings or well production records required by condition 10. The type of meter referred to in the footnote to condition 10 is a "water" meter. PG&E readings of electric meters, when coupled with evidence: (1) that the meter is only for electric service to a water pump and (2) of the amount of water extracted by a pump per some unit of electric energy, is acceptable evidence of water production. Petitioner has not offered the additional information needed to make PG&E meter readings meaningful. Thus, we find that a hearing on the evidence offered by petitioner would be inappropriate because the evidence which is offered is not relevant to whether the Chief properly acted within the scope of his delegation. We also find that the SWRCB's response to this petition is based on the existing record and on the information provided in the petition.
Application 30511 by Wolter, A-30544 by Holt, and application filed December 14, 1995, by Markkula.
It appears that petitioners' understanding of the proposed order declaring the Carmel River to be fully appropriated is flawed. The order does not address whether the SWRCB has authority to issue permits for water rights applications for all or any portion of the subsurface water in the Tularcitos Creek watershed. In addition, to the extent that surface water in Tularcitos Creek (and subsurface water flowing in channels) contributes to the supply of water in the Carmel River, that water would be affected by the proposed declaration that water is not available in the Carmel River upstream of the Pacific Ocean from May 1 to December 31 of each year.
Petitioners do not support this contention with any further explanation or case law in support of the contention. The petitions were not accompanied by required points and authorities. (Cal. Code Regs., tit. 23, § 769(c).) It also appears that the petitioners are addressing the draft order considered at the January 22, 1997 hearing concerning fully appropriated streams but for which no proposed order has been presented to the SWRCB for action. It is premature to seek reconsideration of an action which has not yet occurred. Alternatively, the petitioners could be addressing the order adopted by the Chief. That order, however, does not treat the Tularcitos Basin as being fully appropriated.
When adopting Decision 1632 on July 6, 1995, the SWRCB found that for applications junior to Application 27614 water was available for appropriation from the Carmel River only between January 1 to April 30 of each year. (Decision 1632, p. 34.) This decision is now final and not subject to reconsideration via a petition for reconsideration of the Chief's Order. (See § 3.0 supra.)
See footnote 7.
This memo was transmitted to the petitioners on March 21, 1997, by the Chief along with the Order modifying Table 13 amounts.
The SWRCB does not have jurisdiction to accept petitions for reconsideration filed more than 30 days following the adoption of a decision. (Wat. Code § 1122.)
SWRCB regulations provide examples as to the amounts of water considered to be reasonably necessary for different types of uses. (Cal. Code Regs., tit. 23, § 697.) Under the regulations, more water would be provided for irrigation than is allocated to Wolter in the Chief's Order. Wolter contends he should receive the amount of water provided in the regulations. These regulations address the amount of water which may be approved for diversion, assuming unappropriated water is available under the applicant's priority. The regulations do not address the issue of whether or how much water should be approved if priorities are reversed. In addition, the SWRCB intended to limit priority reversal to only those persons listed in Table 13 consistent with the criteria provided in condition 10. (§ 5.5, supra.) These criteria limit the amount of water the Chief can allocate to only that water demonstrated to have been used via meter readings or well production records.
Wolter also asserts that the Chief considered nonmeter or well production records when determining the amount of water to allocate in connection with the Lutes application. Lutes is a person listed in Table 13 and was allocated water by the Chief's Order. Wolter does not cite to any specific evidence in support of this contention. Review of the underlying staff work upon which the Order is based does reveal a single sentence which recognizes that nonmetered evidence was submitted by Lutes. The memo does not indicate that such information was relied upon when allocating water to Lutes. Indeed, the allocation of water to Lutes is supported by records of metered water use. Thus, we find that the Chief did not rely upon nonmetered data of water use when allocation water to Lutes.
The SWRCB recognizes that malfunctioning water meters will, more often than not, underreport the amount of water used.
Declaration of Russel T. Wolter. The statements in the declaration are lacking in meaningful specificity.
July 11, 1995, Staff Memo.
March 21, 1997, Staff Memo upon which the Chief's Order is based.
No one in Table 13 was allotted water based on this approach.
Public Resources Code section 21000 et seq.
The Declaration of Dr. Robert E. Curry tends to suggest that water being pumped by petitioners Holt and Markkula is not subject to the permit authority of the SWRCB. No permit is required, provided the wells which pump the water are not also pumping water from Tularcitos Creek or its tributaries. If this is the case, the petitioner may continue to pump water as they have in the past and the Chief's Order will have no effect on the quantity of water they can pump for use.
In this case, where the decision is based on existing use, without approving any expansion or change in diversion or use, the approval is exempt from CEQA. (Cal. Code Regs., tit. 14, {Special Char 167 in Font "MurrayHill-WP"} 15301.) It should also be noted that the Chief's Order does not grant any entitlement to use or diversion of water, the order simply provides for a reversal of priority for a specific amount of water should petitioners' applications be subsequently approved. (See Pub. Res. Code § 21065(c) defining what constitutes a "project" subject to CEQA.)
Petitioners request a hearing before the SWRCB. The request is not supported by a declaration that there is new evidence or an offer of proof. Thus, it is assumed that petitioners only seek the opportunity to be heard on the existing record. The SWRCB's response to these petitions is based on the existing record and on the information provided in their written petitions.
The Temple's maximum use of water was 0.5 afa in 1994, based on metered water production records.
The Association's maximum use of water was 17.9 af during 1993-4 and 29.6 af during 1994-5, based on metered water production records.
Petitioners Chugach, Evans, Koontz, Nicholson, and Sterten have filed Applications 30034, 29659, 30057, 30064, and 30070, respectively.
Carmel Valley Water Users' Petition for Reconsideration, p. 2.
Recorded use shall be based either on records of meter readings or well production records.
Limited meter readings are available for the Carmel River Valley beginning in 1987.
The stipulations of petitioners Chugach and Koontz also seek water for prospective uses of water. In Decision 1632, the SWRCB clearly stated that the amounts in Table 13 were for established uses of water. (Decision 1632, pp. 43-50.) We find that it would have been inappropriate for the Chief to allocate more water for prospective uses, even if he had decided to modify Table 13 amounts pursuant to the stipulation.
Petitioners contend that the staff of the SWRCB has found that the amount of water being sought for use by Chugach, Koontz, and Sterten are reasonable amounts. The petitioners are referring to correspondence with the SWRCB pertaining to their individual applications. An amount which is reasonable for an application and the amount the SWRCB finds is in the public interest for according a higher priority claim on water than MPWMD Application 27614 are two different matters. (See § 6.5, par. 2, supra.)
On their face, portions of two of the stipulations are not for existing uses of water. Chugach and Koontz seek amounts of water for prospective use, not just for established uses of water. Their stipulations with MPWMD did not agree to any specific amount of water for prospective use; MPWMD only agreed to acquiesce to amounts that the SWRCB found to be reasonable.
Petitioners may be of the opinion that so long as MPWMD is willing to agree to a reversal in priority there is no reasonable basis for not honoring the stipulations. We disagree. Such stipulations reduce the firm yield of the project approved by Decision 1632. Conditions in MPWMD's permit are predicated on the project's projected yield and ability to provide water to mitigate for the project's effect on fish in the Carmel River. (Decision 1632, conditions 28 and 32.) Stipulations waiving the priority of Application 27614 could affect the proposed New Los Padres Project's ability to meet these conditons. Thus, it is reasonable to require persons submitting revised or new stipulations for more water to demonstrate that the stipulations are predicated on the actual use of water.