ITEM: 6

SUBJECT: PROPOSED ORDER DENYING PETITION FOR RECONSIDERATION OF A DIVISION OF WATER RIGHTS DECISION REJECTING TEMPORARY APPLICATION NUMBER X00133 OF ROBERT FETZER TO DIVERT WATER FROM THE RUSSIAN RIVER IN MENDOCINO COUNTY

DISCUSSION:   Temporary Application Number X00133 was filed on December 15, 1992, to appropriate water by direct diversion during the period of June 1 through September 30 from the Russian River for irrigation. All diversions would be within Mendocino County.

The issue of water availability in the mainstream of the Russian River was addressed in the State Water Resources Control Board (SWRCB) Decisions 1110 and 1610 and Water Right Order 74-30. The water availability issue is summarized in SWRCB Order WR 98-08, Declaration of Fully Appropriated Stream Systems (Declaration) under the statutory authority of Water Code sections 1205 through 1207. Pursuant to the above SWRCB decisions and orders, the applicant was advised by the Division of Water Rights (Division) that no water is available for appropriation during the proposed season of diversion. The applicant was further advised that he could take one of the following actions:  1) amend the application to be consistent with the Declaration, 2) substantiate any pre-1949 claim he might have or 3) petition the Board to modify the Declaration of Fully Appropriated Stream Systems.

The applicant did not take any of the above actions, and instead argues that he should be allowed to appropriate water that is currently appropriated by Sonoma County Water Agency under water right permits 12949 and 12950. After extensive correspondence with the applicant's attorney, the Division rejected the application on May 3, 1999. The applicant�s attorney has filed a petition for reconsideration.

The proposed order would deny reconsideration on the basis that it was not timely filed. The proposed order contains alternative findings explaining why, even if the petition for reconsideration were timely, it would be denied. The proposed order explains that only water attributable to flows from the tributary watersheds of the Russian River is reserved under term 13 of permits 12949 and 12950. It further explains that this water must be diverted from the tributary when water is available in the tributary, and must be used within the watershed of the tributary.

POLICY Should the SWRCB adopt the proposed order denying reconsideration?

FISCAL IMPACT:   This activity is budgeted within existing resources and no additional fiscal  demands will occur as a result of approving this item.

STAFF RECOMMENDATION:   Staff recommends that SWRCB adopt the proposed order.

1.0 BACKGROUND

On May 3, 1999, the Chief of the Division of Water Rights (Division Chief), pursuant to his delegations of authority under State Water Resources Control Board (SWRCB) Resolution No. 99-031, sent a letter to the Petitioner�s attorney, taking action on ten water right applications that had been submitted on the Petitioner�s behalf but not yet accepted as complete by the Division. The Division Chief rejected one of the ten applications and accepted the remaining nine applications for further processing. The rejected application had been given a temporary file number of X00133. Petitioner seeks reconsideration of the action rejecting temporary application number X00133.

The Division Chief�s May 3, 1999, letter advised the Petitioner, through his attorney, that if the Petitioner disagreed with the decision to reject temporary application number X00133, he could file a petition for reconsideration with the SWRCB within 30 days from the date of the letter. The 30-day time limit is established by statute, at Water Code section 1122, which provides:

2.0 DISPOSITION OF PETITION FOR RECONSIDERATION

2.1 In General, SWRCB Reconsideration Of Staff Decisions Is Available

Pursuant to SWRCB Resolution No. 99-031, paragraph 3.2.1.3, the SWRCB has delegated authority to the Division Chief to reject and cancel a defective application that has not been perfected after the SWRCB has allowed 60 days or more to file an amended and perfected application. Under the delegation, the Division Chief acts for the SWRCB by exercising the authority of the SWRCB. In other words, an action of the Division Chief, pursuant to the delegation, is an action of the SWRCB. Since the Division Chief�s decision is a decision of the SWRCB, the SWRCB has the power to reconsider it in accordance with Water Code section 1122. The SWRCB has not delegated to the Division Chief the authority to reconsider the actions delegated to the Division Chief. Consequently, the timely filing of a petition for reconsideration makes available a higher level of review -- by the Board itself -- of an action taken by SWRCB staff.

2.2 The SWRCB Lacks Statutory Authority to Accept An Untimely Petition for Reconsideration

As set forth above, Water Code section 1122 requires that petitions for reconsideration be filed no later than 30 days from the date of the decision. Further, section 1122 provides that the SWRCB�s authority to order reconsideration on its own motion expires after 30 days. There is no provision that allows extensions of the time to file a petition for reconsideration.

The staff engineer�s contact report indicating he had granted a time extension does not constitute an order granting reconsideration. Further, no authorization exists, either in the statute, the SWRCB�s regulations, or in any delegation of authority for a staff engineer in the Division of Water Rights to grant either reconsideration or an extension of time to file a petition for reconsideration by the SWRCB. As discussed above, Petitioner did not rely on any oral time extension by the staff engineer, and instead submitted two letters after talking to the staff engineer, requesting an extension of time.

Because it was submitted late, Petitioner�s intended petition for reconsideration cannot be considered because it was not timely filed. By the time the SWRCB received it, the SWRCB�s statutory authority to order reconsideration on its own motion had expired. Once an agency has rendered a decision, it may not reconsider that decision unless a statute permits reconsideration. (Olive Proration Program Comm. v. Agricultural Prorate Comm�n (1941) 17 Cal.2d 204, 209 [109 P.2d 918]; Azadigian v. Workers� Compensation Appeals Board (1992) 7 Cal.App.4th 372, 378-379 [8 Cal.Rptr. 2d 643].) This conclusion is supported by additional case law interpreting Government Code section 11521, which is similar to section 1122. The case law interpreting Government Code section 11521 follows the above principle that an agency has authority to reconsider an administrative adjudicative decision only for the limited time period provided by the statute, after which the deciding agency lacks jurisdiction to change its decision. (Gamm v. Board of Medical Quality Assurance (1982) 129 Cal.App.3d 34 [181 Cal.Rptr. 23]; Strode v. Board of Medical Examiners (1961) 195 Cal.App.2d 291 [15 Cal.Rptr. 879].)

2.3 Even Assuming the Petition Had Been Timely Filed, Petitioner Provides No Basis for Holding An Evidentiary Hearing

As provided above, the petition was untimely filed, and consequently the SWRCB cannot undertake a valid reconsideration of the action taken on its behalf by the Division Chief. Nevertheless, the SWRCB makes the following findings in sections 2.3 and 2.4 in the event that the above finding regarding timeliness is overturned by a reviewing court.

The SWRCB�s regulation, at California Code of Regulations, title 23, section 768, lists four causes upon which an interested person may petition the SWRCB for reconsideration of an SWRCB decision or order. These are:

1.  Irregularity in the proceedings, or any ruling, or abuse of discretion, by which the person was prevented from having a fair hearing;

2.  The decision or order is not supported by substantial evidence;

3.  There is relevant evidence which, in the exercise of reasonable diligence, could not have been produced; and

4.  Error in law.

Apparently Petitioner is arguing that the Division Chief�s decision contains an error in law. The entire petition for reconsideration consists of legal argument concerning the Division Chief�s interpretation of permits 12949 and 12950, held by the Sonoma County Water Agency. Petitioner argues that he should be allowed to appropriate water currently appropriated under permits 12949 and 12950, with a point of diversion from the Russian River. The basis of this argument is the language of term 13 in each of the two permits. Although Petitioner asks for a hearing, the petition does not present any disputed issue of material fact or list any evidence that petitioner would offer in a hearing. Instead, Petitioner seeks to make legal arguments before the SWRCB. Accordingly, no evidentiary hearing is needed, and the legal arguments set forth in the petition for reconsideration, together with Petitioner�s and/or his attorney�s oral statements at the Board meeting at which this order is considered, will satisfy Petitioner�s request to be heard.

2.4 Even Assuming the Petition Had Been Timely Filed, the Petition Would be Denied Because the Division Chief�s Decision is Correct

A substantial amount of water is imported into the East Fork Russian River through a power tunnel from the Eel River. This water is commingled with water in the East Fork Russian River in Potter Valley and then flows into a reservoir formed by Coyote Valley Dam. Below Coyote Valley Dam, the East Fork Russian River joins the West Fork Russian River to form the mainstem Russian River. A number of tributaries flow into the mainstem Russian River below the two forks.

SWRCB Decision 1030 approved applications filed by Sonoma County Water Agency (SCWA) and Mendocino County Russian River Flood Control and Water Conservation Improvement District, to appropriate water from the Russian River and East Fork Russian River, including storing water at Coyote Valley Dam. Most of the water appropriated at Coyote Valley Dam originates in the Eel River. SCWA releases water from Coyote Valley Dam and rediverts it at its points of diversion in Sonoma County. Under permits 12949 and 12950, SCWA also diverts uncontrolled flows of water out of the mainstem Russian River. These permits allow for diversion of water that originates in the watershed of the Russian River, including its tributaries. Except for Potter Valley, the watersheds tributary to the Russian River are not located where they can receive Eel River water. Term 13 of these permits authorizes new water users in the watersheds tributary to the Russian River to obtain permits to appropriate water, with seniority over permits 12949 and 12950. Petitioner seeks to divert water from the mainstem Russian River pursuant to term 13.

2.4.1 Petitioner�s Argument, in Context

Petitioner takes issue with the Division Chief�s decision that temporary application X00133 is not acceptable. The Division Chief�s decision is based on the fact that the season of diversion requested in application X00133 conflicts with the season when water in the Russian River is fully appropriated, as determined in the SWRCB�s Declaration of Fully Appropriated Stream Systems (Declaration) (SWRCB Order WR 98-08). When the Declaration states that water is fully appropriated during a season of the year, the SWRCB cannot accept an application if the application seeks water from the fully appropriated source during the season. After Petitioner submitted temporary application X00133 to the SWRCB, the Division of Water Rights gave Petitioner several opportunities to amend the application to change the proposed season of diversion. Petitioner did not do so.

Petitioner makes two substantive arguments in support of the acceptability of temporary application X00133 notwithstanding the Declaration. First, Petitioner argues that the Division Chief and the SWRCB�s legal staff are misconstruing a permit term in water right permits 12949 and 12950 held by Sonoma County Water Agency (SCWA). Second, Petitioner argues that he has a right, under Water Code section 10505, to obtain a permit to appropriate water from the mainstem of the Russian River with a priority senior to permits 12949 and 12950.

Petitioner argues that the SWRCB should accept his application for processing pursuant to term 13 of permits 12949 and 12950, and that any resulting permit should take water away from those permits. Under this argument, Petitioner would have water available to him under a direct diversion right at the expense of Sonoma County Water Agency, the holder of permits 12949 and 12950. Permits 12949 and 12950 authorize Sonoma County Water Agency to appropriate water from the Russian River by direct diversion. Permit 12949 allows diversions up to 20 cubic feet per second (cfs) between January 1 and December 31 of each year. Permit 12950 allows diversions up to 60 cfs between April 1 and September 30 of each year. Term 13 of permits 12949 and 12950 provides as follows:

As stated above, Petitioner argues that he has a right, under Water Code section 10505, to obtain a permit to appropriate water from the mainstem of the Russian River with a priority senior to permits 12949 and 12950. Permits 12949 and 12950, however, are not based on state-filed applications that would be subject to the county of origin laws (Water Code §§ 10505, 10505.5). Nor are they subject to either of the watershed or area of origin laws (Water Code §§ 11460-11463, 1215-1222). Consequently, these statutes are not the correct basis for arguing that water is reserved.

As a substitute for area of origin protections, the SWRCB has conditioned these permits to provide protection to water users within parts of the Russian River watershed that is similar to the protections against export of water afforded under state-filed applications. Much of the water appropriated by SCWA is used outside the county or watershed where it originated. Some of the water is used as far away as Marin County. Term 13 is consistent with policy evident in a number of SWRCB decisions to the effect that water originating in a watershed or county should first be available for use within its county or watershed of origin. Under term 13, to the extent that water is present in the tributary watersheds and is not reserved for instream beneficial uses, it can be appropriated by water users for use within the tributary watersheds. As explained in Decision 1030, the natural runoff from the watershed of the Russian River decreases rapidly after the conclusion of the spring rains and becomes virtually nonexistent during the late summer and fall months. (Page 8, D 1030.) Term 13 does not reserve water imported from the Eel River, since that water flows only in the East Fork Russian River and in the mainstem, and is never physically present in the other tributary watersheds.

2.4.3 Points of Diversion Under Term 13

Quoting from term 13 and from the second sentence of the above paragraph, Petitioner argues that term 13 should be read to mean that it reserves water for appropriation and use anywhere in the Russian River watershed. In particular, Petitioner argues that he should be allowed to divert water under term 13 from the mainstem Russian River. In support of this argument, Petitioner argues that term 13 addresses the place where the water can be used, not the place where it can be diverted. Petitioner points out that all the land in the Russian River watershed is tributary to the river.

There are two problems with Petitioner�s argument. First, term 13 could have been worded much more briefly if it were intended to reserve water for diversion and use anywhere in the watershed. If the argument were correct, term 13 would not need to specify that the reservation is "for beneficial use within Potter Valley and within other watersheds tributary to the Russian River except East Fork Russian River downstream from Coyote Valley Dam." Instead, it could have stated "for beneficial use within the watershed of the Russian River."

Second, Decision 1030, when it approved SCWA�s overall project (including several other applications by SCWA to appropriate water) distinguished between reservations of water from the mainstem Russian River and from the tributaries. Under Decision 1030, other permits were issued to SCWA that contain reservations for appropriations from the mainstem Russian River. Thus, the overall project allows for in-watershed appropriations up to specified amounts from the mainstem in Mendocino County and in Sonoma County. As explained in the Division Chief�s May 3, 1999 letter, some water may still be available to Petitioner under the allocation for use in Mendocino County downstream from Coyote Valley Dam.

Term 13 must be read in the context of all the actions taken in Decision 1030. Term 13 reserves water naturally produced in the watersheds tributary to the Russian River for use within those watersheds. Water from the tributaries that reaches the mainstem Russian River is commingled with imported water, and cannot be accounted for separately from the imported water to which Sonoma County Water Agency has rights. Instead of giving users of water from the mainstem priority under term 13, Decision 1030 reserves specific amounts of water for in-basin use by diverters from the mainstem of the Russian River. This reservation is made in other permits which were simultaneously issued to SCWA. The reservations from the mainstem in the other permits benefit water users such as Petitioner along the mainstem of the Russian River in Sonoma and Mendocino Counties.

The Petitioner�s reading of term 13 not only misconstrues the Board�s intent regarding this term, but would make irrelevant the specific reservations of flows in the mainstem of the Russian River set forth in Decision 1030.

2.4.4 Summary

Based on the foregoing, the SWRCB finds that only water attributable to flows from the tributary watersheds of the Russian River is reserved under term 13. With the exception of water in Potter Valley (East Fork Russian River) upstream of Coyote Dam, this is entirely natural flow originating in the tributary watersheds. In Potter Valley, the natural flow is commingled with imported water. As a practical matter, water cannot be attributed to a tributary unless it is diverted from the tributary when water is flowing therein. Accordingly, the SWRCB construes term 13 as requiring that water appropriated under this provision must be diverted from a tributary watershed of the mainstem Russian River for beneficial use within the tributary watershed or Potter Valley. It should be noted, however, that such water can be appropriated only when water is present in the tributary and not required by senior water users in the tributary watershed or by instream beneficial uses. Fishery requirements could impact the ability to divert the water from the tributaries even during times when it is present and not required by senior water right holders.

NOW, THEREFORE, IT IS ORDERED that the petition for reconsideration is denied on the ground that it was not timely filed or, in the alternative, that water is not available for Petitioner�s requested diversion of water from the mainstem Russian River under term 13 of water right permits 12949 and 12950.

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 August 19, 1999.

AYE:

NO:

ABSENT:

ABSTAIN:

_________________
Maureen Marché
Administrative Assistant to the Board