The Salton Sea, I.I.D., and the Public Trust: Some Implications of Water Transfers From the Imperial Valley
by Andrew Pollak
Introduction altered the Board's decision? This article will discuss The California State Water Resources Control these questions as well as summarize the facts leading Board (SWRCB or Board) administers California up to the controversy and examine the ruling's water appropriations and exercises the state's statewide implications. adjudicatory and regulatory functions regarding water pollution and water quality issues. Cal. Water Code § The Salton Sea's Origins and Uses 174 (Deering 1977). On September 30, 1988, the The Salton Sea is contained in a natural SWRCB issued Order 88-20. Imperial Irrigation depression known as the Salton Sink. M. Reisner, District, Order to Submit Plan and Implementation CadillacDesert 127 (1986); A. Swaian, supra, at 3. Schedule for Conservation Measures, Water Rights Over the last several thousand years, Colorado River Order 88-20, 2 (SWRCB September 1988) [hereafter flood waters have repeatedly filled the sink to create the Order 88-20]. Order 88-20 brought to a close the Salton Sea. Id. After each flood, the flood waters second round of hearings in a landmark California eventually receded, leaving the "sea" to slowly dry up water politics issue -- the Salton Sea/Imperial Irrigation under the desert sun. Id. The Salton Sink would then District (UD) waste and unreasonable use hearings. stand dry until the next flood occurred. Id. Order 88-20's implications range beyond the The last flood occurred between 1905 and Imperial Valley's farmlands and the 360 square-mile, 1906, forming the modem-day Salton Sea. M. artificially-created Salton Sea. (See fig. 1). (This Reisner, supra, at 127. Subsequently, the sea did not figure represents the sea's area in 1969, prior to a five dry up as it had in the past. Id. Irrigation waste water foot rise that occurred during the 1970s. A. Swajian, flowing off the Imperial Valley's cultivated land Identification and Evaluation of Federal,State, and replenished water lost from the sea through Local Interests in Salton Sea, California 3 (1969).) evaporation. As agriculture expanded in the Imperial The implications include altering Southern California s Valley, more irrigation return flow entered the sea. water supply and influencing the SWRCB's already After several years, water entering the sea from precarious balance of environmental and water supply irrigation return flow exceeded water leaving the sea needs in the ecologically sensitive Sacramento/San through evaporation; beginning about 1920, the sea's Joaquin Delta. Order 88-20 also provides a major water level actually began to rise. Imperial Irrigation example of "water marketing," an emerging approach District, Alleged Waste and Unreasonable Use of for supplying water to California's municipal and Water, Water Rights Decision 1600,56 (SWRCB June industrial uses. 1984) [hereafter Decision 1600]. In addition, Order 88-20 provides an example After it became clear that the Salton Sea created of the SWRCB allocating water supplies to the during the 1905 flood was more than a temporary detriment of the Salton Sea's environmental interests. intrusion, the federal govenment acted to define the In performing this resource allocation, the SWRCB new sea's purpose. In 1924, the federal government followed California's "reasonable use" doctrine found created Public Water Reserve No. 90 to provide "a in the California Constitution, Article X, Section 2. reservoir in Salton Sea for storage of waste and The Board declined to apply California's public trust seepage water from irrigated land in Imperial Valley." doctrine, a rule "friendlier" to environmental interests. A. Swajian, supra, at 4. California made a similar In the past, the SWRCB and the courts have applied declaration when the state legislature enacted AB 461 the public trust doctrine when faced with water (Veysey) in 1968. The state legislature declared, "[t]he allocation choices between urban/agricultural uses and primary purpose of the Salton Sea is for collection of environmental requirements. agricultural seepage." 1968 Cal. Stat. ch.392, §2. Why did the SWRCB fail to apply the public Despite its recognition as an agricultural trust doctrine to the HD/Salton Sea issue? Would "sump," the Salton Sea also gained recognition for its applying the public trust doctrine in addition to the recreational and wildlife uses. In 1930, under constitutional reasonable use test have substantially Executive Order 5498, the President created the Salton REGIONAL MAP
Source: lID Draft EIR: Prooosed Water Conservation Proaram and Initial Water Transfer. April 1986. Figure 2-1.
Figure 1
Sea National Wildlife Refuge on the sea's southern 1910, the United States Geological Survey measured shoreline to protect the approximately 200,000 ducks about 20 million tons of chlorides in the sea. and 55,000 geese that utilized the sea in winter. A. Pomeroy, Johnston, & Bailey, U.S. Geological Swajian, supra, at 23. The U.S. Fish and Wildlife Survey, Reconnaissance Study and Preliminary Report Service currently manages the refuge. In the 1930s, on a Water Quality Control Plan for the Salton Sea III- the California Department of Fish and Game developed 35 (1910). By 1965, the amount of chlorides had a sport fishery within the sea. The Department grown to 114 million tons. In terms of salt imported the sea's three main species of fish - concentrations, by 1986, the sea's salinity had - orangemouth corvina, sargo, and bairdiella -- from increased to 39,300 parts per million (ppm). (For the Gulf of California and took other steps to form a comparison, the ocean's salinity is about 35,000 ppm food chain within the sea to support the fishery. Id. at [M. Gordon, Animal Physiology: Principles and 32. In 1957, California developed the Salton Sea State Adaptions 299 (1977)], while Mono Lake's current Recreation Area on the sea's northeast shoreline. State salinity is about 85,000 ppm -- but Mono Lake has a records show that hundreds of thousands of fisherman dramatically different chemical makeup [National and other visitors utilize this recreation area each year. Academy of Sciences, The Mono Basin Ecosystem 56 Id. at 6. (1987)].) According to research conducted by the The Salton Sea's slowly increasing salinity has California Department of Fish and Game, a salinity of imperilled the fishery for some time. The salinity 40,000 ppm would endanger fish reproduction. increase is a natural process. Evaporation removes California Department of Water Resources, Southern water from the sea, but does not remove the salts, District, Investigation Under California Water Code chemicals, and other minerals contained in the Section 275 of Use of Water By Imperial Irrigation irrigation return flow entering the sea. Thus, the total District53 (December 1981); Decision 1600, supra, at amount of these materials in the sea has increased over 61. At 50,000 ppm, adult fish could begin to die off. time, increasing the sea's salinity. For example, in Id. liD's Unreasonable Use of Water Water Resources Control Board, 186 Cal. App. 3d The Imperial Irrigation District, a publicly- 1160, 231 Cal. Rptr. 283 (1986) (review denied owned irrigation agency, was formed in 1911 to January 21, 1987). On April 13, 1988, after remand provide water for agricultural and municipal uses and trial on the merits, the Superior Court upheld the within Imperial County. IID diverts water from the SWRCB's findings and directives in Decision 1600. Colorado River via the All-American Canal. Today, The court denied a rehearing on July 8, 1988, clearing this water irrigates about 460,000 acres of Imperial the way for serious conservation efforts to begin Valley agricultural land annually. Decision 1600, within lD. supra, at 5. liD's Colorado River diversions also Order 88-20, released September 30, 1988, supply municipal, industrial, and domestic needs in the followed public hearings held in 1987 and 1988 to towns of Calexico, El Centro, and Brawley. Id. evaluate ]ID's progress, or lack of progress, in In 1980, a local farmer filed a formal complaint instituting the water conservation measures mandated with the SWRCB, alleging that IID's careless irrigation by the SWRCB in Decision 1600. Order 88-20, practices allowed delivery of large amounts of excess supra, at 2. Order 88-20 sets milestone dates for water to farmlands and also allowed water to spill over completion of lID's conservation program elements. and seep through irrigation canals. Id. at 4. The Id. at 44. The order requires 1II1 to present a "definite complaint alleged that the excess water generated huge implementation schedule" for water conservation amounts of return flow, which entered the Salton Sea measures to the SWRCB by January 1, 1989. Id. lID and caused it to rise and inundate property owned by must show how it will conserve at least 100,000 acre- the farmer and other landowners. Id. at 5. feet of water per year by January 1, 1994. Id. Order In 1983, after a Department of Water 88-20 also summarizes liD's findings that RID's long- Resources investigation and report, the SWRCB held term conservation potential measures 367,900 acre-feet hearings on the alleged waste of water within HD. Id. per year. Id. at 17. at 56. The hearings resulted in Decision 1600 which held that about seventy percent of the sea's inflow was Salton Sea Effects attributable to IID's irrigation return flow. This figure The SWRCB's decision to require IlD to equals about one million acre-feet of water per year, or institute water conservation measures involves about thirty eight percent of liD's total Colorado River environmental impacts at the Salton Sea. These water rights. (One acre-foot of water equals 325,851 impacts include accelerated degradation of the Salton gallons, enough water to supply a family of five for Sea fishery and extensive reduction of recreation one year. One million acre-feet of potable water - related to the fishery. The Board viewed these impacts - irrigation return flow is typically not potable -- would as unavoidable. Decision 1600, supra, at 58. supply five million people annually.) The Board held liD's conservation efforts will reduce the liD's irrigation practices the principal cause of the amount of water available to dilute the Salton Sea's Salton Sea's five foot rise between 1972 and 1981, salinity. As a result, the naturally occurring salt which flooded more than 15,700 acres of public and buildup will accelerate, causing destruction of the private land. Id. at 57. fishery earlier than anticipated. This change in salinity The SWRCB held lID's water use could occur quickly: between 1980 and 1982 the sea's unreasonable under California Constitution, Article X, surface level dropped only four inches, yet salinity Section 2. Id. at 19. This section sets policy goals for increased from 38,000 ppm to about 39,000 ppm. California water usage and provides that the state must Decision 1600, supra, at 59. put its water resources to the fullest beneficial use When the salinity begins to affect the fishery, possible. The section also requires a water rights reacreation at the Salton Sea will be detrimentally holder to utilize only the amount of water reasonably affected. RID estimates, and the SWRCB agrees, that required to serve the beneficial purpose(s) for which all fishing activity and one-half of all other recreational the rights holder diverts water. activity will be lost when damage to the fishery occurs. In Decision 1600, the SWRCB ruled that water Order 88-20, supra, at 28. ID estimates this decrease entering the Salton Sea could no longer provide will amount to a total loss of 575,000 recreation days consumptive beneficial uses. Id. at 66. The Board annually. See id. at 28. determined that liD could reasonably meet its needs In making this decision which adversely affects and free up water for other beneficial uses if it the Salton Sea's fishery, the SWRCB explicitly conserved a portion of its Salton Sea return flow. Id. recognized the difference between the reasonable use at 66. The Board ordered liD to develop a comprehensive water conservation plan to reduce the amount of spills into the sea and to report back to the Board periodically on its progress. Id. at 67. The Board also reserved jurisdiction to review IlD's actions in carrying out Decision 1600's orders. Id. at 70. ID disputed the SWRCB's finding of waste and challenged the Board's authority to make binding orders. The courts subsequently upheld the SWRCB's authority in ImperialIrrigation Dist. v. CaliforniaState of water and the beneficial use of water. liD's irrigation return flow to the Salton Sea might have a beneficial effect in reducing the sea's salinity, but: "[i]n view of the limited life of the Salton Sea fishery under current conditions ... the Board concludes that the beneficial effect of the present quantity of ID inflow is outweighed by the adverse effect of the rising water level on surrounding property and various uses associated with that property. Under present conditions, we do not believe that the existing quantity of lID inflow to the Salton Sea can be considered a reasonable use of water." Imperial Irrigation District, Alleged Waste and Unreasonable Use of The public trust doctrine, as defined by Water, Water Rights Order 84-12, 9 (SWRCB previous judicial decisions and embraced by the September 1984) (affirming Decision 1600 and Audubon court, mandates protection of fishing and denying petitions for reconsideration). recreation, two uses detrimentally affected by Decision 1600. When consumptive water needs, such as The SWRCB probably also considered the fact municipal/agricultural water use, conflict with public that the adverse impacts would occur to an artificial trust interests, Audubon requires a "balancing" of uses body of water, whose main statutory purpose involved to determine the proper water allocation. The Audubon acting as a "sump" for agricultural runoff. The fact court did not spell out the nature of the "balancing" that the SWRCB's decision did not involve a natural process; it left this definition open for future courts to lake with a native fish population very likely made it determine on a case-by-case basis. easier for the Board to reach its decision. The Club faced a problem in attempting to The SWRCB has subsequently encouraged the apply the public trust doctrine to an artificial body of development of mitigation measures to preserve water such as the Salton Sea. The public trust, as environmental resources at the Salton Sea once IID's related to inland waters, historically springs from conservation measures begin. Order 84-12, supra, at California's sovereign interest in navigable waterways 10; Order 88-20, supra, at 32. These measures may that existed at the time California entered the Union in reduce impacts to wildlife that rely upon the wetlands 1850. Audubon, 33 Cal.3d at 434. This requirement along the sea's shoreline. It is uncertain, however, has precluded the trust from affecting most artificial whether measures could be instituted that would bodies of water in the state, including reservoirs and mitigate the effect of reduced inflow on fishery and canals. In 1850, the Salton Sea as it is known today related recreational losses. did not exist, and would not exist for another 55 years. The SWRCB used this reasoning to reject the The Public Trust Salton Sea Fish and Wildlife Club's petition for After Decision 1600's publication in 1984, the reconsideration: Salton Sea Fish and Wildlife Club (Club), an Imperial No such title or public trust easement was Valley environmental group, urged the SWRCB to acquired to ... the present Salton Sea since alter its decision. Order 84-12, supra, at 10. The Club the Sea was not created until 1905.... contended that according to the recently decided [R]egardless of the extent to which the public National Audubon Society v. Superior Court, 33 trust doctrine may or may not apply to an Cal.3d 419 (1983), cert. denied, 464 U.S. 977 artificial body of water, it is apparent that the (1983), the California public trust doctrine protected doctrine does not justify continued inundation the Salton Sea's recreational and environmental uses. of property to which no public trust easement Under the public trust doctrine, California has an attaches. Order 84-12, supra, at 10. affirmative duty to protect certain public interests in The SWRCB declared, in essence, that it was not coastal and inland waters. These public trust interests, feasible to protect fishery and recreational uses at the which include recreation, environmental uses, Salton Sea. Absent an economical physical solution to fisheries, navigation, and commerce, are held in trust maintain the sea's water quality, such as an expensive for the people of the state. [For more information, see salinity control plant, the Board felt it was improper to generally, Public Trust Symposium, 14 U.C. Davis L. postpone the inevitable salinity increases by Rev. 180-496 (1980).] In Audubon, the California maintaining IHD's huge level of inflow. Order 84-12, Supreme Court affirmed the need to reevaluate water supra, at 10. diversions threatening the Mono Lake environment. The SWRCB might have sidestepped the The Audubon holding, applicable to Decision 1600, "requirement" that the body of water exist in 1850, stated: "the State has an affirmative duty to take the however, and applied the public trust doctrine to the public trust into account in the planning and allocation Salton Sea. As the doctrine has evolved in California, of water resources, and to protect public trust uses through Audubon and other decisions, its required whenever feasible." Audubon, 33 Cal.3d at 446. elements have changed. For example, historically, the trust could only apply to waters wide and deep enough acceptable alternatives for protection of the Salton Sea to be "navigable" by water craft. People v. Mack, 19 fishery outweighed the need to protect public trust Cal. App. 3d at 1051, 97 Cal. Rptr. at 54 (1971). The resources at the sea. court in Dahlgrenv. Department of Water and Power, No. 8092, slip op. (Mono County Superior Court, Benefits of I) Conservation and Water August 17, 1985) (order granting preliminary Transfer injunction), however, interpreted Audubon and found The SWRCB's decisions affect HD's use of that the public trust doctrine could be applied to an water; however, the decisions do not affect I[D's arguably non-navigable portion of Rush Creek, a rights to divert water. ID's rights to 2.6 million acre- tributary of Mono Lake. Subsequently, in Mono Lake feet of Colorado River water stem from a 1931 Committee v. Department of Water and Power, No. interstate compact, confirmed by the U.S. Supreme 8608, slip op. (Mono County Superior Court, October Court in Arizona v. California, 99 S.Ct. 995 (1979). 21, 1987) (order granting preliminary injunction) the [For a full explanation of California's tangled rights to court interpreted Audubon and ruled that the public Colorado River water, see Abbott, CaliforniaColorado trust applied to a stretch of Lee Vining Creek, also River Issues, 19 Pac. L.J. 1414-25 (1988).] Order 88- tributary to Mono Lake, that was definitely non- 20 forces lID to change its irrigation practices, navigable. In each case, the court so ruled to protect basically to irrigate the same area with less water. public trust interests in these streams -- especially the Eventually, with the conservation measures in place, streams' fish populations. lID will have rights to more water than it can use. If currently non-navigable stream sections Surplus water will then become available. existing in 1850 are subject to the public trust, then the Such surplus water could be transferred to the trust should equally apply to the Salton Sea: a wholesaler of imported water for the greater Southern navigable lake not existing in 1850. The navigability California area, the Metropolitan Water District requirement is an important element in determining (MWD). MWD already possesses a contractual right whether the public trust should apply. If the courts to divert Colorado River water through its 280-mile may waive one element of the public trust analysis in long Colorado River Aqueduct. MWD's rights, the above creek cases, then they may waive other however, are inferior to liD's rights, and claims by elements of the analysis at the Salton Sea. Arizona and by Native Americans have reduced the The emphasis placed by the courts on amount of water available to MWD over time. Surplus preserving fisheries in the lower Rush Creek and water made available by R[D's conservation efforts lower Lee Vining Creek cases may indicate that in the could replace a portion of MWD's losses. future, the traditional public trust tests of navigability An IID-MWD transfer would reduce the and "existence in 1850" may be superceded by a amount of water that MWD would otherwise have to simpler test. The courts may be moving to the position acquire from other sources, particularly the that the public trust doctrine applies to an inland Sacramento/San Joaquin Delta. (See fig. 2). Each waterway whenever a public trust value, especially a acre-foot transferred from I) to MWD would fish population, is found to exist in that waterway. [A diminish Southern California's need to divert full discussion of the implications of this interpretation additional Delta water via the California Aqueduct. of the Mono Basin creek cases, including inequities to The SWRCB will take transfers from RD to MWD into private stream and reservoir owners and other account in reaching its ultimate decision in the Bay- uncertainties to water rights holders, is beyond this Delta hearings, currently underway, that are paper's scope. Uncertainties stemming from these and determining the amount of water diversions to be other cases, however, prompted proposed legislation allowed from the Delta over the next twenty years. to place limitations on the public trust doctrine and a On November 3, 1988, the SWRCB's staff public hearing, held in Sacramento by the State released a draft report on Delta water quality. The Assembly Water, Parks, and Wildlife Committee on Draft Report assumes that by 2010, transfers from HI) November 21, 1988.] Under this new judicial to MWD will reach the maximum amount identified in interpretation, the mere existence of the Salton Sea's Order 88-20, almost 368,000 acre-feet per year. State fishery and recreation uses would be sufficient to Water Resources Control Board, Draft Water Quality compel the state to perform a public trust "balancing." Even if the above creek cases had been decided in time to allow the SWRCB to use them as precedent, and the Board had applied the public trust to the Salton Sea, the Board's original decision most likely would have stood. In a public trust balancing process, the competing water user's needs are weighed against the trust use's needs. Occasionally the state, as a matter of "practical necessity," may "have to approve appropriations despite foreseeable harm to public trust uses." Audubon, 33 Cal.3d at 446. The numerous benefits that lID's conserved irrigation water would provide statewide, described below, and the absence of ShataakeTHE CALIFORNIA I AQUEDUCT AND THE SACRAMENTO -SAN JOAQU IN DELTA
.Laeowville
RAMENTO RIVER
Sacramento-San Joaquin Delta
SAN JOAQUIN RIVER
California Aqueduct
1)
Figure 2
Control Plan, San Francisco Bay-Sacramento/San controversy. For example, in 1987, under the Joaquin Estuary, 6-6, 6-12 (October 1988). The auspices of the continuing mediation effort by the Board's staff estimates a concurrent reduction of UCLA Public Policy Program, the Mono Lake Southern California's need to divert water from the Committee and the Department of Water and Power Delta. The Board will hold public hearings on the hired the Environmental Defense Fund to examine Draft Report through 1989 before deciding whether or water marketing alternatives to Los Angeles's Mono not to approve the plan. Basin diversions. Finally, a water transfer between ID and MWD represents a large scale example of water Conclusion marketing: "the temporary or permanent transfer of The question of whether the courts can apply water rights from one purpose or place of use to the public trust to artificial bodies of water, especially another, without loss of priority by the transferor." municipal and recreational reservoirs, has received O'Brien, Water Marketing in California, 19 Pac. L.J. renewed attention in a recent case involving a reservoir 1166 (1988). In California, the water marketing near Lake Oroville. In Golden Feather Community concept usually refers to transfers from agricultural Association v. Thermalito IrrigationDistrict, 199 Cal. users to urban users. Water marketing may represent App. 3d 402 (1988), the California Third District the solution to several of the state's current water Court of Appeal ruled that the public trust doctrine controversies and also represent an important water could not apply to Concow Reservoir. The State supply source to help meet the state's future water Attorney General and the SWRCB's counsel, neither needs. MWD has looked into marketing agreements of whom were involved in the original proceeding, with other agricultural agencies to enhance its supply wrote to the court after Golden Featherwas published. picture, and transfers are also being examined as an The parties argued that the court incorrectly decided the alternative in the resolution of the Mono Lake case based on the the SWRCB's recent practices, and on the argument, developed by the Attorney General in the Mono Basin Creek cases, that the public trust -. s interest in fisheries should be protected wherever a . _ fishery might be located. The parties requested that the Al Y court depublish its opinion and issue a new opinion. The Third District court subsequently depublished its opinion, but a new opinion has not been released. It remains to be seen whether the appellate courts will agree with the Mono County Superior Court and extend the public trust doctrine's applicability. Such an extension would not only apply to Concow Reservoir, but to places such as the Salton Sea.
Andrew Pollak is afirstyear law student at King Hall. He obtained a BA. in Geography at UCLA in 1979. Before attending law school, he worked as an administrativeassistant at the Los Angeles Department of Water and Powerperforming duties relating to the Mono Lake litigation. Andy calls himself a computer hacker, but he really isn't. Central Valley Water Allocations: The Wildlife Perspective
by Melissa Thorme
INTRODUCTION and boron. Declining amounts of high quality water Historically, California's Central Valley directly affects wetlands wildlife populations, wetlands covered four million acres and supported a represents hunting and fishing recreational losses, and wide variety of wildlife including tule elk, mule deer, poses a long-term threat to the Pacific Flyway pronghorn antelope, grizzly bears, and an waterfowl that winter in California. Senate unimaginable abundance of waterfowl. California Committee, Sliding Toward Extinction, at 60. In Senate Committee on Natural Resources and Wildlife, 1987, migratory bird population levels dropped from Sliding Toward Extinction: The State of California's the 1976-1985 average of 7.4 million birds to only 2.5 Natural Heritage, 1987 59 (Nov. 1987) [hereafter million birds. Id. at 60. Senate Committee, Sliding Toward Extinction]. Over The Central Valley's wetlands wildlife refuges the last 200 years, levee and dam construction changed need a dependable water supply to lessen adjacent land the valley's natural hydrological systems by drying up uses' impacts which decrease surface and groundwater streams and decreasing flooding. Because the valley's availability. Most wetland areas now lack a secure wetlands began to receive reduced natural flows and annual water source other than rainfall and must flood waters, the wetlands shrank. These changes depend on year-by-year water purchases and/or water permitted landowners to convert expansive areas from diversions from any available source. Id. at 65. wetlands to farmlands. By 1978, the Central Valley Currently, the Central Valley Project (CVP) has wetlands covered about four percent of their original approximately one million acre feet of water available area. Id. at 60. for marketing and distribution. The Regional Director State and federal governments established of the Bureau of Reclamation's Mid-Pacific Region wildlife refuges to preserve the rapidly shrinking stated that the Bureau will reserve twenty five percent wetlands and their inhabitants. Ten refuges were of this uncommitted water supply from contracting established in the Central Valley. The ten refuges pending completion of a study on federal, state and currently face serious threats from inadequate water private wildlife refuges and wetlands' water needs in supplies and contamination of existing supplies by the Central Valley. Department of the Interior, Interior salts, pesticides, and natural elements such as selenium Lifts CVP Contracting Moratorium, News Release No.