Environmental Defense Fund, Inc. v. East Bay Municipal Utility District , 20 Cal. 3d 327 ( 1977 )

Opinion

CLARK, J.

Plaintiffs and intervener appeal from judgment of dismissal following the court’s sustaining defendants’ demurrers without leave to amend. We affirm the judgment. •

Plaintiffs, three corporations and three individuals, are residents of an area served by defendant East Bay Municipal Utility District (EBMUD), a governmental agency. Intervener is the County of Sacramento.

Plaintiffs’ Complaint

We first summarize the allegations of plaintiffs’ complaint. Delivering water to approximately 1,100,000 persons in Alameda and Contra Costa Counties, EBMUD possesses water rights to 325 million gallons per day (mgd) from the Mokelumne River watershed, its principal source of water. The current average water consumption within EBMUD’s service area is 212 mgd.

EBMUD organized and controls Special District One which operates a waste water treatment facility. This facility performs only “primary treatment” on the water, discharging the effluent into San Francisco Bay.

In the early 1960s EBMUD determined its Mokelumne River supply would be insufficient to meet the needs of its service area by the year 1985. EBMUD thereupon undertook a wide-ranging search for supplemental water supplies. In 1968, it entered an agreement with, among others, the United States Bureau of Reclamation (Bureau). By the terms of this agreement, EBMUD obligated itself to perform specified conditions if it later signed a contract with the Bureau. One condition obligated EBMUD to construct a canal, known as the Hood-Clay Connection, if the Bureau found such a canal necessary. The Hood-Clay Connection is an integral part of the Bureau’s Central Valley Project, East Side Division.

EBMUD contracted with the Bureau in December 1970, agreeing to purchase, beginning in the year the Bureau completes its AubumFolsom-South Project on the American River, up to 150,000 acre feet of water annually for a period of 40 years. This water is to be delivered to EBMUD from a diversion point on the Folsom-South Canal above its intersection with the proposed Hood-Clay Connection. This choice of diversion point renders the water unavailable to the lower American River.

EBMUD’s actions will cause its 1985 consumers to pay a higher price for water than if EBMUD were to reclaim waste water. And EBMUD did not, in the course of its contractual negotiations, consider waste-water reclamation as a means of supplementing existing water supplies. EBMUD’s agreements have contributed to the likelihood the Bureau will complete its East Side Division. And the Bureau’s completion of this project will in turn diminish flows on the lower American River, injuring recreational opportunity, increasing salination, and accelerating wild river destruction. Finally, EBMUD’s conduct will pollute San Francisco Bay.

On the basis of their allegations, plaintiffs assert three causes of action. As their first cause, plaintiffs claim EBMUD’s decision not to develop reclamation facilities violates article X, section 2, of the California Constitution and Water Code sections 100 and 13500 e-t seq. Plaintiffs’ second cause contends EBMUD’s decision to obtain water from the American River violates the same provisions because it contributes to the likelihood the Bureau will complete the East Side Division project. The third cause asserts the combination of the two EBMUD decisions violates the constitutional and statutory provisions.

Plaintiffs seek three orders, one requiring EBMUD to use its best efforts- to rescind the 1970 contract with the Bureau, the second prohibiting EBMUD from issuing bonds to finance the construction of facilities for transmitting and distributing American River water, and the third requiring EBMUD to undertake a reclamation program “as the proof will determine is required by law.”

Intervener’s Complaint

The complaint in intervention incorporates plaintiffs’ allegations. We summarize its additional allegations. The “lower” American River lies within the boundaries of Sacramento County. The river has been used by the public for scenic and recreational purposes for numerous years. In 1962, the county began developing an area along the river for a regional park, having now expended over $6 million.

EBMUD might have acquired water from the federal government at a point below the confluence of the Sacramento and lower American Rivers just as economically as from the diversion point actually chosen. As recognized by decision No. 1400 of the California Water Resources Control Board, the lower diversion point would not impair the recreational use of the American River.

In addition to the relief sought in plaintiffs’ complaint, the complaint in intervention prays for a declaration that EBMUD lacked legal capacity to enter the 1970 contract because the diversion point constitutes an unreasonable water use.

Plaintiffs’ first amended complaint combines the allegations of their original complaint and of intervener’s complaint, seeking the relief claimed in both.

The trial court sustained defendants’ general demurrers on the ground the case is governed by federal—not state—law. In its extensive and well reasoned opinion, the trial court noted that EBMUD is purchasing water from a federal project authorized by Congress, that the Bureau has obtained a permit for the project from the State Water Resources Control Board (SWRCB), and that plaintiffs had not challenged the legality of the federal project. The trial court was of the opinion application of state law might render the water unsalable, interfering with the federal government’s water rights and with the project itself.

While holding that federal law controls this proceeding, the trial court addressed plaintiffs’ state law cáuses of action. The court held plaintiffs failed to assert a cause of action on the basis of article X of the California Constitution or Water Code section 100 because they were not claiming a property right in the water adverse to the rights of the defendants. The court further ruled Water Code section 13500 et seq. do not impose a legal duty on EBMUD to reclaim waste water.

Federal Preemption

At the outset we must determine whether the Reclamation Act of 1902 (43 U.S.C. § 371 et seq.) precludes application of state law to a contract between a state entity and the Bureau. It is undisputed that EBMUD in general possesses authority to contract with the Bureau. (Pub. Util. Code, §§ 12721, 12801, 12844.)

EBMUD contends the United States Supreme Court has interpreted the act as limiting application of state law to merely defining what constitutes a compensable property interest. EBMUD asserts state law is otherwise preempted. Plaintiffs and intervener on the other hand argue that the cooperative relationship between the states and the federal government established by federal law permits the states to determine who may receive water from a federal project and under what conditions. (See generally, Sax, Problems of Federalism in Reclamation Law (1965) 37 Colo.L.Rev. 49.)

We conclude the Reclamation Act preempts state law (1) when state law conflicts with federal law, (2) when federal law vests the federal agency with final authority over the subject matter, or (3) when the application of state law would frustrate a federal objective. Insofar. as the complaints challenge construction of the canal and the choice of diversion point on the basis of state law, they fail to state a cause of action because they attempt to use state law to determine a matter within the authority of the federal agency. Insofar as the complaints seek to compel EBMUD to reclaim water, there is no federal or state conflict, application of state law will not impinge on federal controls or interests, and state law is not preempted.

Under the terms of the 1970 contract, EBMUD will purchase water from the Auburn-Folsom South Unit, an integral part of the Bureau’s Central Valley Project being constructed under authority of the 1902 act. (43 U.S.C. § 616aaa.) Projects constructed pursuant to the 1902 act are predicated on congressional authority under the general welfare clause of the United States Constitution. (Art. I, § 8; Ivanhoe Irrig. Dist. v. McCracken (1958) 357 U.S. 275, 294 [2 L.Ed.2d 1313, 1327, 78 S.Ct. 1174]; U. S. v. Gerlach Live Stock Co. (1950) 339 U.S. 725, 738 [94 L.Ed. 123.1, 1242, 70 S.Ct. 955, 20 A.L.R.2d 633].)

The Reclamation Act of 1902 includes provisions concerning preemption. Section 8 states that the act is not to be construed as interfering with state laws relating to “control, appropriation, use or distribution of water used in irrigation . . . .” The congressional enactments specifically authorizing the Central Valley Project contain a similar provision. Section 616eee of 43 United States Code directs the Secretary of the Interior to make recommendations for the use of water in accord with state law. Additionally, the act contains a provision stating, “the policy of the Congress [is] to recognize the primaiy responsibilities of the States and local interests in developing water supplies for domestic, municipal, industrial, and other purposes and that the Federal Government should participate and cooperate with States and local interests in developing such water supplies in connection with the construction, maintenance, and operation of Federal navigation, flood control, irrigation, or multiple purpose projects.” (43 U.S.C. § 390b.)

In Ivanhoe Irrig. Dist. v. McCracken (1958) 357 U.S. 275 [2 L.Ed.2d 1313, 78 S.Ct. 1174], the Supreme Court interpreted section 8 within the context of contracts between state agencies and the Bureau for delivery of water. The contracts contained clauses, pursuant to section 5 of the Reclamation Act (43 U.S.C. § 423e), providing that water from the federal project would not be delivered to parcels exceeding 160 acres unless the owner agreed to sell the excess land. In a proceeding to confirm the contracts, an owner of 309 acres challenged the acreage limitation on state law grounds.

This court (Ivanhoe Irr. Dist. v. All Parties (1957) 47 Cal.2d 597 [306 P.2d 824]) held that the United States, by appropriating water, did not acquire full title to the water but instead entered a trust relationship with the water users of this state, that the trust imposed the obligations of state law on the federal government, and that under section 8, state rather than federal law was determinative of water rights. (47 Cal.2d at pp. 626-629.) Accordingly, this court held the contractual provisions embodying section 5 invalid as inconsistent with Water Code section 22250.

The United States Supreme Court granted certiorari and reversed. The high court framed the issue as whether or not section 8 allowed application of state law so as to nullify the specific and mandatory congressional directives of section 5. (357 U.S. at p. 290 [2 L.Ed.2d at p. 1325].) Expressly refusing to pass generally on the coverage of section 8 in the area of federal-state relations (id., at p. 292 [2 L.Ed.2d at p. 1326]), the court ruled the specific provisions of section 5 governed the general provisions of section 8. (Id., at p. 291 [2 L.Ed.2d at p. 1325]; Nebraska v. Wyoming (1945) 325 U.S. 589, 615 [89 L.Ed. 1815, 1830, 65 S.Ct. 1332].)

The Supreme Court’s decision in Ivanhoe did not hold—as EBMUD now urges—that section 8 allowed application of state law only to define what constitutes a compensable property interest. The often cited statement, “As we read § 8, it merely requires the United States to comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein” (357 U.S. at p. 291 [2 L.Ed.2d at p. 1325]), must be read in context. This statement is found in a paragraph which begins by pointing out this court’s construction of section 8 rendered the application of state law absolute. The statement itself is prefaced by the court’s comment, “We believe [the California Supreme Court’s construction of section 8] erroneous insofar as the substantive provisions of % 5 of the 1902 Act are concerned

Ivanhoe fails also to support plaintiffs’ and intervener’s claim that section 8 permits the states to determine who may receive water from a federal project and under what conditions. The Supreme Court expressly stated it was not passing generally on the coverage of section 8 (id. at p. 292 [2 L.Ed.2d at p. 1326]) and that it “need not determine whether a state could [by preventing state agencies from entering into contracts] frustrate the consummation of a federal project. . . . (Id. at p. 290 [2 L.Ed.2d at p. 1325]).” Ivanhoe establishes that under section 8 inconsistent state law may not be applied to defeat a specific and mandatoiy congressional directive, expressly leaving open the broader questions argued by the parties before us.

Similarly, City of Fresno v. California (1963) 372 U.S. 627 [10 L.Ed.2d 28, 83 S.Ct. 996], fails to support the construction of section 8 urged by the parties. Like Ivanhoe it holds that state law may not be applied so as to defeat a specific and mandatory congressional directive. In addition, it extends the preemption doctrine by holding state laws preempted when they impair powers delegated to the administrator.

In Fresno the city sought a declaration it possessed prior right as well as statutory priority under state law to use water impounded by the Bureau for municipal and domestic purposes and that it was entitled to receive project water at the same rate charged for water delivered for irrigation.

The court held section 8 could not be applied to divest the United States of its eminent domain power. (372 U.S. at p. 630 [10 L.Ed.2d at p. 30].) The court pointed out that under section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. § 485h(c)) Congress had specifically prohibited contracts to supply municipal water unless the Secretary of the Interior determined the contracts would not impair the project’s irrigation purposes. (Id. at p. 631 [10 L.Ed.2d at p. 31].) The case holds that state law was preempted because of the eminent domain and delegated contract powers. The case is of no aid to plaintiffs and intervener.

Section 8 was not limited to merely allowing state law to define property interests as urged by EBMUD. The court’s statement in Fresno that “the effect of § 8 in such a case is to leave to state law the definition of the property interests, if any, for which compensation must be made” (372 U.S. at p. 630 [10 L.Ed.2d at p. 31]; italics added) is not to the contrary. The above italicized language refers to cases involving the federal government’s eminent domain power. (See Ivanhoe Irrig. Dist. v. McCracken, supra, 357 U.S. 275, 291 [2 L.Ed.2d 1313, 1325]; U. S. v. Gerlach Live Stock Co., supra, 339 U.S. 725.) The present case does not concern the federal government’s eminent domain authority.

In the third United States Supreme Court case involving section 8, Arizona v. California (1963) 373 U.S. 546[10 L.Ed.2d 542, 83 S.Ct. 1468], the court resolved a controversy among several states concerning their rights to use water from the Colorado River and its tributaries. The decision was governed by the provisions of the Boulder Canyon Project Act. (43 U.S.C. §§ 617-617t.)

Arizona arose against a background of aborted attempts by the several states to agree upon a division of the Colorado'River watershed water through interstate compact When the states-were unable to agree, Congress responded by passing the Boulder Canyon Project Act. Section 5 of the act (43 U.S.C. § 617d) provides that the Secretary of the Interior is authorized to contract pursuant to regulations he may prescribe for the storage and delivery of water and that no person is entitled to the use of any water except by contract with the secretary. Section 8(b) of the act (43 U.S.C. § 617g(b)) states that any compact entered among the states would be “subject to all contracts, if any, made by the Secretary under section [5]....”

In Arizona the argument was made that the secretary was obligated to apply the prior appropriation laws of the states in distributing project water. This argument was predicated on section 18 of the Boulder Canyon Project Act (43 U.S.C. § 617g) and section 8 of the Reclamation Act of 1902. Section 18 provides that the act shall not be construed as interfering with states’ rights to adopt such laws as are deemed necessaiy concerning the appropriation, control, and use of waters within their borders. Section 8 of the general reclamation law was made applicable through section 14 of the Boulder Canyon Project Act (43 U.S.C. § 617m) by incorporation by reference.

The Supreme Court rejected this argument. Pointing out that the provisions of sections 5 and 8(b) gave supremacy to the secretary’s contracts (373 U.S. at p. 580 [10 L.Ed.2d at p. 566]), the court held the general saving language of sections 18 and 8 could not be used to nullify the contractual power expressly conferred upon the secretary by section 5. (Id. at pp. 587-588 [10 L.Ed.2d at pp. 570-571].) The court noted the Boulder Canyon Project Act reflected, largely through section 5, the recognition by Congress of the need for unitary management and control of the multi-state water distribution system. It also pointed out that allowing too great a scope to state law would endanger the federal objectives. “Subjecting the Secretary to the varying, possibly inconsistent, commands of the different state legislatures could frustrate efficient operation of the project and thwart full realization of the benefits Congress intended this national project to bestow.” (373 U.S. at pp. 589-590 [10 L.Ed.2d at p. 572].)

Although Arizona differs from the instant case both because several states rather than only one were involved and because the secretary possessed broader powers than in the 1902 act, the Supreme Court’s approach in interpreting section 8 and related sections is instructive. The court held that Congress preempts state laws not only when direct conflict exists but also when danger exists in that state law either interferes with the secretary’s expressly delegated powers, frustrates operation of the project, or limits the benefits of the project.

Cases dealing with statutes similar to section 8 confirm that Arizona reflects the proper construction of the provision.

In First Iowa Coop. v. Power Comm’n (1945) 328 U.S. 152 [90 L.Ed. 1143, 66 S.Ct. 906], the State of Iowa sought the court’s ruling that an applicant for a license from the Federal Power Commission (FPC) must, under federal law (16 U.S.C. §§ 802(b), 821), first comply with state law. Section 9(b), of the Federal Power Act (16 U.S.C. § 802(b)) requires an applicant, as a condition to obtaining a license, to submit satisfactory evidence of compliance with state law to the FPC. Section 27 (16 U.S.C. § 821), like section 8 of the Reclamation Act, provides that nothing in the act shall be interpreted so as to interfere with state laws concerning the control, appropriation, use or distribution of water.

The Supreme Court held federal law does not require compliance with state law as a condition precedent to securing a license. The court noted the state laws in question not only concerned the same matters Congress had committed to the discretion of the FPC but were also inconsistent with federal requirements. (328 U.S. at pp. 165-167 [90 L.Ed. at pp. 1150-1151].) Under these circumstances, state law was held to have been preempted. The court reasoned chat the application of state law would frustrate the congressional purpose of establishing a cooperative dual system of control by vesting two agencies—one state and one federal —with final authority over the same subject matter. (Id., at pp. 167-168 [90 L.Ed. at pp. 1151-1152].) The.court pointed out the statutory scheme created a dual system of control allowing each agency final authority within its sphere of jurisdiction. (Id.) Section 27 is intended to prevent supersedure of state law within the jurisdiction reserved to the states. (Id. at pp. 175-176 [90 L.Ed. at pp. 1155-1156].)

Another federal statutory provision analogous to section 8 was construed in Rice v. Chicago Board of Trade (1946) 331 U.S. 247 [91 L.Ed. 1468, 67 S.Ct. 1160]. In Rice the petitioner sought a declaration the Board of Trade’s rules relating to warehousing grain were invalid, not having been first submitted to the Illinois Commerce Commission for approval. The board—itself a state agency—argued the authority of the commission had been superseded by the Commodity Exchange Act. (7 U.S.C. § 1 et seq.) Section 4(c), of the federal act provided, “nothing in this section . . . shall be construed to impair any state law applicable to any transaction enumerated or described in such sections.”

The court held the regulations of the Illinois Commerce Commission were superseded to the extent they were inconsistent with federal law. (331 U.S. at pp. 255-256 [91 L.Ed. at p. 1474].) This result was found required by section 4(c). The court reasoned that while section 4(c) left undisturbed nonconflicting state authority “supersedure was to take its natural course where rights not saved to the States were involved.” (Id. at p. 255 [91 L.Ed. at p. 1474].)

Insofar as both complaints attempt to invalidate the contract on the basis of its terms and conditions, the above principles require our finding preemption. As noted, they challenge both construction of Hood-Clay Connection and choice of diversion point. Plaintiff’s complaint seeks rescission partially on the ground the EBMUD-Bureau contract will contribute to the likelihood the Bureau will complete development of the East Side Division, an integral part of the Central Valley Project specifically authorized by Congress. (43 U.S.C. § 616aaa et seq.)

The federal reclamation laws clearly establish that construction and maintenance of water facilities are vested in the Bureau. (E.g., 43 U.S.C. § 390b(b) [projects constructed by Bureau or Corps of Engineers]; id. § 616aaa [Secretary of Interior to construct, operate, and maintain Central Valley Project, American River Division].) The determination of diversion point obviously concerns construction of the federal project. The location of the diversion point in fact comprises a substantial part of the federal project. Similarly, construction and location of the Hood-Clay Connection are clearly within the authority invested in the Secretary of the Interior and the Bureau. The allegation the EBMUD-Bureau contract will facilitate the Bureau’s completion of the Central Valley Project on its face represents attempted interference with the Bureau’s completion of a project Congress has directed it to undertake. Accordingly, we conclude that the complaint fails to state a cause of action insofar as it seeks invalidation of the contract on grounds that under state law construction of the canal or placement of the diversion point assertedly involve an unreasonable water use.

On the other hand, the cause of action seeking to compel EBMUD to reclaim waste water is not preempted by federal law. Nothing exists in the federal reclamation laws precluding parties contracting with the federal government from securing additional water from other sources.

Waste Water

In support of their causes of action to compel EBMUD to reclaim waste water, plaintiffs and intervener contend EBMUD’s failure to reclaim contravenes the Water Reclamation Law (Wat. Code, § 13500 et seq.), and violates article X, section 2, of the California Constitution and Water Code section 100. However, we conclude the contention is not properly before us in this proceeding. Parties seeking to compel a user to reclaim waste water must, in the first instance, seek relief from the State Water Resources Control Board (SWRCB), and having failed to do so are precluded from maintaining such cause of action against EBMUD.

Article X, section 2, provides in full: “It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner’s land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in furtherance of the policy in this section contained.” (Italics added.) Water Code sections 100 and 101 are substantially the same as the constitutional provision.

The Legislature, consistent with its authority under article XTV, section 3, has established a thorough statutory system insuring reasonable water allocation and safeguarding water purity, commensurate in scope with the constitutional provision. (Modesto Properties Co. v. State Water Rights Board (1960) 179 Cal.App.2d 856, 860 [4 Cal.Rptr. 226].) The statutes vest the SWRCB with full authority to “exercise the adjudicatory and regulatory functions of the state in the field of water resources.” (Wat. Code, § 174; Johnson Rancho County Water Dist. v. State Water Rights Board (1965) 235 Cal.App.2d 863, 867 [45 Cal.Rptr. 89].) It has been granted broad authority to control and condition water use, insuring utilization consistent with public interest. (Wat.Code, § 1257.) This authority includes protection of the environment. (Id.) The SWRCB’s powers extend to regulation of water quality and prevention of waste. (E.g., Wat. Code, §§ 100, 275.) It has adopted administrative regulations to prevent waste and unreasonable use. (Cal.Admin.Code, tit. 23, §§ 764.10-764.13.)

The Legislature enacted the Water Reclamation Law to encourage waste water reclamation as a means of supplementing existing water supplies. (Wat. Code, §§ 13510-13512.) The Department of Health, the Regional Water Quality Control Boards, and the SWRCB regulate reclamation and use of waste water. (Wat. Code, §§ 13320, 13510-13512.)

The Department of Health is charged with responsibility for establishing statewide reclamation criteria as the basic governing standard to insure public health and safety in view of the hazards attendant in waste water reclamation. (Wat. Code, §§ 13520-13521.) In addition to statewide criteria, the regional boards, in consultation with the Department of Health, are directed to promulgate water reclamation requirements. Water reclamation requirements must include or be consistent with the statewide reclamation criteria and may be imposed on the reclaimer, user, or both. (Wat. Code, § 13523.)

Following establishment of criteria, reclamation or use of waste water is prohibited until the regional boards promulgate reclamation requirements or determine no requirement is necessary. (Wat. Code, § 13524.) Any person reclaiming or proposing to reclaim, or using or proposing to use reclaimed waste water in any region governed by reclamation criteria is required to file a verified report with the regional board. This report must contain information required by the regional boards. (Wat. Code, § 13522.5.) The regional boards may also require submission of preconstruction reports. (Wat. Code, § 13523.)

The law provides both criminal and injunctive sanctions to insure enforcement. Any person using reclaimed waste water after establishment of criteria, but prior to promulgation of reclamation requirements, is guilty of a crime. (Wat. Code, § 13526.) Similarly, violation of reclamation requirements subjects the violator to criminal penalties. (Wat. Code, § 13525.5.) Failure of a party to file a report containing the information deemed necessary by the regional board constitutes a crime. • (Wat. Code, § 13522.6.) The Attorney General must, upon request by the regional board, seek injunction or other relief to compel any person to promptly file a report (Wat, Code, § 13522.7), or to prohibit any person from violating the law’s provisions. (Wat. Code, § 13525.) Finally, the Department of Health or any local health officer is required to abate reclaimed waste water úse causing contamination. (Wat. Code, § 13522.)

The statutoiy pattern clearly reflects the Legislature’s intent to vest regulation of waste water reclamation in the administrative agencies.

Due to the danger to public health and to the problems of feasibility connected with waste water reclamation, the statutory provisions prohibit use of recláimed waste water until the Department of Health establishes statewide criteria and the regional boards establish reclamation requirements. The careful consideration demanded by the Legislature prior to permitting reclamation of waste water is evidenced by its decision to make violations of its statutes criminal. The broad powers given to boards toward obtaining injunctions and enforcing compliance with adopted criteria and requirements also reflect legislative intent to vest regulation of waste water reclamation in the boards.

The SWRCB is exercising those powers. It has recently required a public utility to demonstrate the utility’s study and conclusions concerning waste water reclamation. (Order 76-12.) SWRCB is now developing policies and plans for waste water reclamation throughout the state. (Cal. State Water Resources .Control Board, Policy and Action Plan for Water Reclamation in Cal. (Draft, Dec. 1976).)

Permitting our superior court’s concurrent jurisdiction in this difficult area would impair the comprehensive administrative system established by the Legislature to guarantee reasonable water use and purity. The scope and technical complexity of issues concerning water resource management are unequalled by virtually any other type of activity presented to the courts. What constithtes reasonable water use is dependent upon not only the entire circumstances presented but varies as the current situation changes. As this court noted in Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 140 [60 Cal.Rptr. 377, 429 P.2d 889], “what is a reasonable use of water depends on the circumstances of each case, such an inquiry cannot be resolved in vacuo from statewide considerations of transcendent importance.”

The question whether available economic resources should be devoted to waste water reclamation or development of other water supplies is basically a legislative one. The necessity of considering the entire circumstances is obviously increased when, as here, a court is called upon to adjudicate the reasonableness of a decision not to reclaim waste water in the context of a long term procurement of water supplies for over a million people. The issues are far more complex and different both in kind and degree from those presented when a court adjudicates only between two competing users. (E.g., Joslin v. Marin Mun. Water Dist., supra, 67 Cal.2d 132 [reasonableness of municipal water supply as opposed to availability of sand, gravel, and rock]; Peabody v. City of Vallejo (1935) 2 Cal.2d 351 [40 P.2d 486] [reasonableness of municipal use versus water flow over land to deposit silt and wash out salt deposits].) The matter is still further complicated when, as here, transcendent interests of public health and safety beyond normal water use are involved.

When as in the instant case the statutory pattern regulating a subject matter integrates the administrative agency into the regulatory scheme and the subject of the litigation demands a high level of expertise within the agency’s special competence, we are satisfied that the litigation in the first instance must be addressed to the agency. (See Jaffe, Judicial Control of Administrative Action (1965) p. 121 et seq.) Plaintiffs and intervener’s contentions concerning waste water reclamation must be addressed in the first instance to the SWRCB.

The judgment is affirmed.

Tobriner, Acting C. J., and Kaus, J.,^* concurred.

* Assigned by the Chairperson of the Judicial Council.