Filed 5/10/16 Delaware Tetra Technologies, Inc. v. Santa Margarita Water Dist. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


DELAWARE TETRA TECHNOLOGIES,
INC.,
                                                                       G050864
     Plaintiff and Appellant,
                                                                       (Super. Ct. No. 30-2012-00576715)
         v.
                                                               OPINION
SANTA MARGARITA WATER
DISTRICT et al.,

     Defendants and Respondents;

COUNTY OF SAN BERNARDINO et al.,

   Real Parties in Interest and
Respondents.



                   Appeal from a judgment of the Superior Court of Orange County,
Gail Andrea Andler, Judge. Affirmed. Appellant’s request for judicial notice. Denied.
                   Rutan & Tucker, Robert S. Bower, Philip D. Kohn, John A. Ramirez and
Alan B. Fenstermacher for Plaintiff and Appellant.
              Best Best &Krieger, Michelle Ouellette and Sarah E. Owsowtiz for
Defendants and Respondents.
              Richards, Watson & Gershon, James L. Markman, B. Tilden Kim and
Patrick D. Skahan for American Ground Water Trust and Property and
EnvironmentResearch Center as Amici Curiae on behalf of Defendants and Respondents.
              Downey Brand, Christian L. Marsh, Kevin M. O’Brien and
Rebecca R.A. Smith for Real Party in Interest and Respondent County of San Bernardino.
              Remy Moose Manley, Sabrina V. Teller and Gwynne B. Hunter for
California State Association of Counties and California Association of Sanitation
Agencies as Amici Curiae on behalf of Defendant and Respondent Santa Margarita Water
District and Real Party in Interest and Respondent County of San Bernardino.
              Brownstein Hyatt Farber Schreck, Diane C. De Felice, Amy M. Steinfeld;
Woodruff, Spradlin & Smart and M. Lois Bobak for Real Parties in Interest and
Respondents Cadiz, Inc., and Fenner Valley Mutual Water Company.
                                  *           *          *


                                      INTRODUCTION
              This appeal is one of six related cases arising out of a proposed project to
pump fresh groundwater from an underground aquifer located below real property owned
by Cadiz, Inc., in the Mojave Desert (the Project). The Project is a public/private
partnership, the purposes of which are to prevent waste of the water in the underground
aquifer, and to transport the water to many other parts of the state in which it is needed.
              In this case, Delaware Tetra Technologies, Inc. (Delaware Tetra), filed a
petition for a writ of mandate in the trial court, challenging the Santa Margarita Water
District’s (Santa Margarita) execution of a memorandum of understanding (the
Memorandum) among Santa Margarita, the County of San Bernardino (the County),
Cadiz, Inc., and the Fenner Valley Mutual Water Company. Delaware Tetra argued that

                                              2
Santa Margarita improperly executed the Memorandum without having performed the
necessary environmental review under the California Environmental Quality Act (CEQA)
(Pub. Resources Code, § 21000 et seq.). The trial court denied the petition for a writ of
mandate, and Delaware Tetra appeals.
              We conclude environmental review was not required before Santa
Margaritaexecuted the Memorandum. We further conclude the Memorandum did not
violate either the County’s relevant groundwater management ordinance or common law.
              Therefore, we affirm.


                    STATEMENT OF FACTS AND PROCEDURAL HISTORY
              The relevant facts are set forth in Delaware Tetra Technologies, Inc. v.
County of San Bernardino (May 10, 2016, G050858) ___ Cal.App.4th ___, ___-___
[pages 3-5], filed concurrently herewith.
              Delaware Tetra filed a petition for a writ of mandate and complaint for
injunctive relief, challenging Santa Margarita’s execution of the Memorandum. The
petition and complaint alleged Santa Margarita’s execution of the Memorandum was
unlawful for two reasons: (1) Santa Margaritafailed to perform the necessary assessment
of the environmental impacts of the Memorandum before approving its execution; and
(2) the execution of the Memorandum improperly amended San Bernardino County
Ordinance No. 3872, adding article 5, section 33.06551 et seq., Desert Groundwater
Management, to San Bernardino County Code title 3, division 3, chapter 6
(the Ordinance). Following a bench trial, the trial court issued a detailed statement of
decision outlining its findings of fact and conclusions of law. The court denied the
petition with prejudice, and entered judgment against Delaware Tetra. Delaware Tetra
timely filed a notice of appeal.




                                             3
                                         DISCUSSION
                                               I.
                                   CALIFORNIA WATER LAW
              The California Constitution and the Water Code make clear that the policy
of this state is to put water resources to reasonable and beneficial use. The Constitution
provides: “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.” (Cal. Const., art. X, § 2.)
              Groundwater belongs to the state, not any person or entity, but may be
extracted by those with the right to do so, including those whose land overlies the
groundwater source. (Central and West Basin Water Replenishment Dist. v. Southern
Cal. Water Co. (2003) 109 Cal.App.4th 891, 905-906.)
              State agencies have consistently concluded that flexibility is necessary in
managing groundwater supplies. “Groundwater management must be adapted to an
area’s political, institutional, legal, and technical constraints and opportunities.
Groundwater management must be tailored to each basin or subbasin’s conditions and
needs. Even within a single basin, the management objectives may change as more is
learned about managing the resource within that basin. Flexibility is the key, but that
flexibility must operate within a framework that ensures public participation, monitoring,
evaluation, feedback on management alternatives, rules and regulations, and
enforcement.” (Dept. of Water Resources, Cal.’s Groundwater: Bulletin 118-Update
2003 (Oct. 2003) p. 38
<http://www.water.ca.gov/pubs/groundwater/bulletin_118/california’s_groundwater__bul
letin_118_-_update_2003_/bulletin118_entire.pdf> [as of May 10, 2016].)

                                               4
                                            II.
                                  STANDARDS OF REVIEW
              The appropriate standards of review are set forth in the companion case,
Delaware Tetra Technologies, Inc. v. County of San Bernardino, supra, ___
Cal.App.4that page ___[page 7].


                                            III.

                 THE MEMORANDUM DOES NOT VIOLATE THE ORDINANCE.

              Delaware Tetra argues that the Project is excluded only from the permitting
requirements in the Ordinance, not from the Ordinance as a whole. Therefore, Delaware
Tetra contends, the Project was required to comply with the definitions of groundwater
safe yield and overdraft included in the Ordinance, which it will fail to do. Santa
Margarita argues, however, that the Project is excluded from the entirety of the
Ordinance.
              In Delaware Tetra Technologies, Inc. v. County of San Bernardino
(May 10, 2016, G050881) (nonpub. opn.), we addressed the same issue and held that the
clear and unambiguous language of the Ordinance establishes that the Project is excluded
from the entirety of the Ordinance. Our holding here is the same.


                                            IV.
     SANTA MARGARITAWAS NOT REQUIRED TO PERFORM AN ENVIRONMENTAL REVIEW
               UNDER CEQA BEFORE APPROVING THE MEMORANDUM.

              Delaware Tetra contends that the Memorandum was a “project” within the
meaning of CEQA, for which environmental review was necessary before it could be
approved. In the companion case, Delaware Tetra Technologies, Inc. v. County of San



                                             5
Bernardino, supra, ___ Cal.App.4that pages ___-___ [pages 7-17], we concluded that the
Memorandum was not a project requiring environmental review be conducted before it
was approved by the County. The same analysis and conclusion applies to Santa
Margarita’s approval of the Memorandum.


                                            V.
           THE MEMORANDUM DOES NOT VIOLATE COMMON LAW RESTRICTIONS
                           REGARDING OVERDRAFT.

             Delaware Tetra argues that the Memorandum also violates common law
restrictions regarding overdraft. This issue was fully addressed in Delaware Tetra
Technologies, Inc. v. County of San Bernardino, supra,G050881, in which we held the
analytical framework that the Supreme Court used in City of Los Angeles v. City of San
Fernando (1975) 14 Cal.3d199 is consistent with the analyses the trial court and this
court have used in this case. We therefore hold the Memorandum does not violate
common law restrictions regarding overdraft.1


                                           VI.
 SANTA MARGARITADID NOT VIOLATE THE ORDINANCE BY APPROVING THE MEMORANDUM
                   BEFORE THE COUNTY APPROVED THE PLAN.

             Delaware Tetra argues that Santa Margarita violated the Ordinance by
approving the Memorandum before the County approved the Plan. This argument, too,

             1
                 Delaware Tetra asked this court to take judicial notice of the cover page
and an excerpt of the Plan, which was approved in October 2012, claiming portions of the
Plan are relevant to its argument that the Project is inconsistent with the definitions of
overdraft in the Memorandum and in common law. We disagree. The Plan was not
before Santa Margarita when it approved the Memorandum, and cannot be considered on
appeal, except for certain reasons not applicable here. (Code Civ. Proc., § 1094.5.)
Moreover, the Plan is not relevant to the issues raised on appeal. (Western States
Petroleum Assn. v. Superior Court (1995) 9 Cal.4th559.) Therefore, we deny Delaware
Tetra’s request for judicial notice.

                                            6
has been fully addressed in Delaware Tetra Technologies, Inc. v. County of San
Bernardino, supra,G050881, in which we held the Ordinance did not provide that the
approval of a groundwater management plan and the execution of a binding agreement
regarding monitoring and mitigation occur in any particular order. We adopt that holding
here as well.


                                       DISPOSITION
                The judgment is affirmed. Respondents to recover costs on appeal.




                                                 FYBEL, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.




                                             7
