Environmental Defense Fund v. East Bay Mun. Utils. Dist.
Citation: 8 ELR 20105
No. No. S.F. 23422, 572 P.2d 1128/12 ERC 1134/20 Cal. 3d 327, (Cal., 12/20/1977) Dismissal aff'd
The California Supreme Court affirms a trial court's dismissal of a suit challenging defendant's failure to adopt waste water reclamation techniques and its decision to build a canal and divert water from the lower American River pursuant to a contract with the federal Bureau of Reclamation. Relying on a series of United States Supreme Court decisions interpreting § 8 of the Reclamation Act of 1902, the court holds that plaintiffs fail to state a cause of action insofar as they challenge defendant's choice of a diversion point and construction of the Hood-Clay canal as an unreasonable use of water under state law. This contention represents an attempt to use state law to determine a matter within the authority of the Bureau of Reclamation. Both the location of the diversion point and the construction and location of the canal are integral parts of the larger federal Central Valley project, and the federal reclamation laws therefore preempt any state laws that would frustrate or interfere with operation of that federal program. Plaintiffs' claim that state law requires defendant to undertake waste water reclamation is not preempted because it does not conflict with federal law and will not impinge on federal controls or interests. This claim is not properly before the court, however, since plaintiffs failed to raise this contention in the first instance before the Regional Water Quality Control Board. The detailed statutory scheme governing the use of waste water indicates that the state legislature intended to vest regulation of waste water reclamation in the state Department of Health. Moreover, use of such waters raises complex technical and public health issues that the Board, with its expertise and special competence, is now developing policies to address.
A dissent by Justice Mosk contends that this case presents no federal-state conflict requiring the application of preemption principles and that the defendant state agency should simply be required to comply with the provisions of state law in purchasing water from any source.
Counsel for Plaintiffs-Appellants
Thomas J. Graff
Environmental Defense Fund
2728 Durant Ave., Berkeley CA 94704
F. Bruce Dodge
Morrison & Foerster
One Market Plaza, San Francisco CA 94105
Counsel for Defendant-Appellee
John B. Reilley, Gen. Counsel
2130 Adeline St., Oakland CA 94607
Counsel for Intervenor Sacramento County
L. B. Elam, Deputy County Counsel
827 7th St., Sacramento CA 95814
Sacramento CA 95814
Counsel for Amicus Curiae State of California
Evelle J. Younger, Attorney General; Jan E. Chatten, Deputy Attorney General
600 State Bldg., 217 W. First St., Los Angeles CA 90012
For himself and Kaus;* Richardson, J. concurs in a separate opinion; Mosk, J. dissents.