*1209This appeal involves challenges to the State Water Resources Control Board's (Board) imposition of a new annual fee on water right permit and license holders in fiscal year 2003-2004 to cover a portion of the costs of the Board's Division of Water Rights (Division or Water Rights Division).
In 2003, the Legislature enacted Water Code
To implement section 1525's fee requirement, the Board adopted California Code of Regulations, title 23, sections 1066 and 1073 (regulation 1066 & regulation 1073). Regulation 1066 sets forth a fee formula for permit and license holders. Regulation 1073 sets forth a formula for allocating the annual fee "for projects within the Central Valley Project" (CVP) when the Board determines that the United States Bureau of Reclamation (USBR), which operates the CVP, will not pay the fee. (Regulation 1073, subd. (b).)
Plaintiffs Northern California Water Association, California Farm Bureau Federation, and individual fee payors claimed that the annual fee imposed in fiscal year 2003-2004 constituted an unlawful tax, as opposed to a valid regulatory fee, under article XIII A, section 3, of the California Constitution (Proposition 13)
Our Supreme Court has already ruled that sections 1525, 1540, and 1560 are constitutional on their face. ( California Farm Bureau Federation v. State Water Resources Control Bd. (2011)
Following a 10-day bench trial, the trial court issued a statement of decision that determined inter alia that the statutory scheme as applied through its implementing regulations imposed a tax, as opposed to a valid regulatory fee, by allocating the entire cost of the Division's regulatory activities to permit and license holders, while non-paying-water-right holders who benefit from and place burdens on the Division's activities pay nothing.
The Board appeals, contending the trial court erred in invalidating the fee regulations.
We shall conclude that the trial court's central premise-that the Board allocated the entire cost of the Division's regulatory activities to permit and license holders-is wholly incorrect because it fails to recognize the role that general fund money played in fiscal year 2003-2004. That year the Legislature appropriated roughly $9 million dollars for the Water Rights Division, *1211roughly 51 percent of which was paid from the Water Rights Fund (fee revenue), while 43 percent was paid from the state's general fund, and 6 percent from reimbursements and other funds. Moreover, the record shows that roughly 90 percent of the Division's costs were attributable to permit and license holders, while 10 percent were attributable to non-fee-paying right holders. Thus, the fees assessed on permit and license holders were proportionate to the benefits derived by them or the burdens they placed on the Division. Plaintiffs' assertion that the water right fee was imposed for the second half of the fiscal year is at odds with the evidence and the language of section 1525, subdivision (e), which provides that the fees "imposed pursuant to this section for the 2003-04 fiscal year shall be assessed for the entire 2003-04 fiscal year ," and section 1552, which states that "moneys in the Water Rights Fund are available for expenditure, upon appropriation by the Legislature." (Italics added.)
We shall further conclude that the Board's decision to allocate all of the USBR's annual fee for projects within the *147CVP to the water supply contractors was reasonable. The record and the case law establish that the USBR provides the contractors with all available water after satisfying its obligations under state and federal law. Because the CVP contractors received everything the USBR had to give under its CVP permits and licenses, the Board reasonably valued the CVP contractors' beneficial interest in those permits and licenses at 100 percent. Finally, we shall conclude that the trial court erred in determining that the fee regulations were invalid based on their application to a single payor. Accordingly, we shall reverse the judgment invalidating the fee regulations.
FACTUAL AND PROCEDURAL BACKGROUND
"The water in California belongs to the people, but the right to use water may be acquired as provided by law." ( Farm Bureau II, supra, 51 Cal.4th at p. 428,
Prior to fiscal year 2003-2004, the operation of the Water Rights Division was supported primarily by the state's general fund, with less than one percent of Division costs covered by fees. The Governor's budget proposal for fiscal year 2003-2004 proposed expenditures of $8.7 million to support the water rights program, $7.2 million of which was to be payable from the general fund. In its analysis of the fiscal year 2003-2004 budget bill, the Legislative Analyst's Office (LAO) recommended that general fund support for the water rights program be fully replaced with "a new annual compliance fee assessed on all water rights holders under the board's jurisdiction." The Board opposed the LAO's recommendation, arguing that the LAO's analysis incorrectly assumed that "all water right actions benefit ... the regulated community (water right permit and license holders)" and failed to take into account water-right holders outside of the Board's jurisdiction who also benefit from the Division's activities but would not be assessed a fee (i.e., RPP right holders).
*1213The final budget act, which took effect on August 2, 2003, appropriated roughly $9 million for the Water Rights Division, $4.4 million of which was payable from the Water Rights Fund, which had yet to be established. The final change book to the Governor's fiscal year 2003-2004 budget stated in pertinent part: "Adopt trailer bill language to establish an annual water right fee. Fee revenues would be deposited in the newly created Water Rights Fund and used to offset General Fund expenditure reductions ." (Italics added.)
In September 2003, the Legislature passed Senate Bill No. 1049 (2003-2004 Reg. Sess.) (Senate Bill 1049) by a simple majority (53 percent). (Stats. 2003, ch. 741, p. 5549 et seq.) Senate Bill 1049 was signed by the Governor on October 8, 2003, and took effect on January 1, 2004. Senate Bill 1049 repealed certain sections of the Water Code and enacted sections 1525 through 1560, which among other things, imposed an annual fee on water right permit and license holders ( § 1525 ) and established the Water Rights Fund (§§ 1550 & 1551).
As relevant here, section 1525, subdivision (a) requires water right permit and license holders to pay an annual fee according to a fee schedule established by the Board.
Section 1540 allows the Board to allocate the annual fee (or a portion thereof) of a person or entity who refuses to pay it based on sovereign immunity to persons or entities who have contracts for the delivery of water from the person or entity upon whom the fee was initially imposed.
*1214Section 1560 sets out the options that may be pursued when the United States or an Indian tribe declines to pay the annual fee by relying on sovereign immunity.
Sections 1550 and 1551 establish the Water Rights Fund into which all fees, expenses, and penalties collected by the Board must be deposited. Section 1552 sets forth the purposes for which the money in the Water Rights Fund may be used and provides that such funds are available for expenditure "upon appropriation by the Legislature."
To establish a fee schedule as directed in section 1525, the Board began with the $4.4 million figure set forth in the fiscal year 2003-2004 budget-the amount of the Division's $9 million budget that was to be paid from the Water Rights Fund. The Board determined that most of the fee revenue should come from annual fees because it believed that annual fees would provide a more stable funding source, and most of the Division's work is related to overseeing and protecting water rights.
The Board assumed that 40 percent of permit and license holders would not pay the annual fee because 40 percent of permit and license holders failed to comply with the existing mandatory reporting requirements. To account for the estimated 40 percent noncollection rate, the Board divided $4.4 million by 0.60, which generated a revised billing target of over $7 million.
The Board elected to apportion the fees among permit and license holders based on the face value of their permits and licenses, i.e., the total annual amount of diversion authorized by the permit or license,
*150The Board reduced the face value of the permits and licenses for hydroelectric projects because the Division expends fewer resources administrating *1215those water rights.
After running several calculations, the Board set annual fees at the greater of $100 or $0.03 per acre-foot based on the face value of the permit or license.
The Board used the same methodology for calculating the USBR's annual water right fee as it did for other permit and license holders. The face value of all the USBR permits and licenses was 116 million acre-feet. After adjustments for hydropower, the face value of the USBR's permits and licenses was reduced to 86 million acre-feet, which in fiscal year 2003-2004 amounted to an annual fee of roughly $2.58 million (86 million acre-feet multiplied by $0.03).
Once the Board determined that the USBR would not pay the fee based on sovereign immunity, the Board elected to allocate the portion of the USBR's fee attributable to its CVP permits and licenses, 81.7 million acre-feet, to the CVP contractors. ( §§ 1540, 1560, subd. (b)(2).) The 81.7 million-acre feet amounted to $2.45 million in annual fees (81.7 million acre-feet multiplied by $0.03). The Board divided the $2.45 million among the projects within the CVP according to each project's water rights, and using records provided by the USBR, the Board grouped the CVP contractors by the project serving them. It then assessed the CVP contractors a prorated share of the amount of fees associated with the projects serving them, based on the amount of water specified in their contracts.
To implement the fee schedule as directed in section 1525, the Board adopted regulation 1066 and regulation 1073. Regulation 1066 applies to water right permit and license holders. Regulation 1066, former subdivision (a), provided: "A person who holds a water right permit or license shall pay an annual fee that is the greater of $100 or $0.03 per acre-foot based on the total annual amount of diversion authorized by the permit or license." (Reg. 1066, subd. (a), Register 2003, No. 52 (Dec. 23, 2003).)
The Board adopted regulation 1073 to implement sections 1540 and subdivision (b)(2) of section 1560, which among other things, authorized the *1216Board to allocate an annual fee imposed on the United States to persons or entities who contract with the United States for the delivery of water when the United States declines to pay the annual fee based on sovereign immunity. As relevant here, regulation 1073 provides that if the USBR declines or is likely to decline to pay fees or expenses for projects within the CVP, the Division Chief shall allocate those fees or expenses to the USBR's water supply contractors. (Regulation 1073, subd. (b)(2).) The regulation further provides that "[t]he fee or expense for projects of the [CVP] shall be prorated among the contractors for the [CVP] based on either the contractor's entitlement under *151the contract or, if the contractor has a base supply under the contract, the contractor's supplemental supply entitlement."
In January 2004, the Board of Equalization
The Division's actual adjusted operational costs and funding sources for fiscal year 2003-2004 were as follows:
WATER RIGHTS State Operations General Fund $3.865* Public Resources Account, Cigarette and Tobacco Products $0.355 Sales Tax Federal Trust Fund $0.150 Reimbursements $0.088 Water Rights Fund $4.608 Totals, State Operations $9.066 * Dollars in millions
Roughly 51 percent of the Division's costs were paid from the Water Rights Fund, while 43 percent were paid from the state's general fund, and 6 percent from reimbursements and other funds.
*1217Plaintiffs challenged the imposition of the annual water right fee, seeking declaratory and injunctive relief and a writ of mandate. They alleged that the statutory scheme enacted by the Legislature was unconstitutional on its face and "as applied" through the emergency regulations adopted by the Board. The trial court initially denied the writ of mandate, ruling that the money collected constituted valid regulatory fees, rather than taxes. It also rejected plaintiffs' other constitutional claims.
We reversed in part, holding that the statutory scheme was constitutional on its face, but that it was unconstitutional as applied through the fee formulas set forth in the emergency regulations. ( California Farm Bureau Federation v. California State Water Resources Control Bd. (2007)
Our Supreme Court affirmed our judgment holding that the statutory scheme was constitutional on its face, but reversed our determination that the statutes were unconstitutional as applied through the regulations. ( Farm Bureau II, supra, 51 Cal.4th at p. 428,
Following a 10-day bench trial, the trial court issued a statement of decision that concluded inter alia that "the statutory scheme and its implementing regulations improperly require the permit and license holders to pay more than a de minimis amount for regulatory activities that benefit non-paying water right holders, or that result from burdens non-paying water right holders placed on the Water Rights Division" and therefore must be invalidated. The court also determined that plaintiffs "demonstrated that the allocation of the [USBR's] fees to [CVP] contractors is unconstitutional under the supremacy clause, because the allocation of fees is not limited to the contractors' beneficial or possessory use of the [USBR's] water rights." The Supreme Court's decision in Farm Bureau II and the trial court's findings on remand are set forth in more detail below in the discussion of the Board's claims on appeal.
*1218DISCUSSION
I
The Trial Court Erred in Determining That the Water Right Fee Imposed in Fiscal Year 2003-2004 Pursuant to Regulation 1066 Was Not Properly Allocated, and Thus, Constituted an Unlawful Tax
The trial court determined that the annual water right fee imposed in fiscal year 2003-2004 operated as a tax, not a valid regulatory fee, because "the evidence establishes that the statutory scheme and its implementing regulations do not provide a fair, reasonable, and substantially proportionate assessment of all costs related to the regulation of affected payors." The trial court's determination is predicated on its finding that "the statutory scheme and its implementing regulations improperly require the permit and license holders to pay more than a de minimis amount for regulatory activities that benefit [RPP] right holders, or that result from burdens [RPP] right holders place on the Water Rights Division."
The Board does not dispute that RPP right holders were not assessed any water right fees even though they benefited from and placed burdens on the Division's activities. Rather, the Board claims that the trial court ignored substantial evidence in the record that established that only 10 percent of the Division's costs were attributable to RPP right holders, and that there was more than enough "non-fee" support for the Division to cover such costs. According to the Board, had the trial court considered such evidence, it would have concluded that holders of permits and licenses were not required to pay for costs attributable to RPP right holders. The Board therefore contends that the trial court erred in determining that the statutory scheme and its implementing regulations do not provide a fair, reasonable, and substantially proportionate assessment of all costs related to the regulation of affected payors. The Board is correct.
A. Applicable Law
"The California Constitution provides that any act to increase taxes must be passed by a two-thirds vote of the Legislature. On the other hand, statutes that create or raise regulatory fees need only the assent of a simple majority." ( Farm Bureau II, supra, 51 Cal.4th at p. 428,
"[A] regulatory fee, to survive as a fee, does not require a precise cost-fee ratio. A regulatory fee is enacted for purposes broader than the privilege to use a service or to obtain a permit. Rather, the regulatory program is for the protection of the health and safety of the public. The legislative body charged with enacting laws pursuant to the police power retains the discretion to apportion the costs of regulatory programs in a variety of reasonable financing schemes. An inherent component of reasonableness in this context is flexibility." ( California Assn., of Professional Scientists v. Department of Fish and Game (2000)
"The plaintiff challenging a fee bears the burden of proof to establish a prima facie case showing that the fee is invalid." ( Farm Bureau II, supra, 51 Cal.4th at p. 436,
"Whether section 1525 imposes a tax or a fee is a question of law decided upon an independent review of the record." ( Farm Bureau II, supra, 51 Cal.4th at p. 436,
*1220B. The Proceedings on Remand
In Farm Bureau II, our Supreme Court concluded that it could not resolve the " 'tax or fee' question" because the trial court's order lacked sufficient factual findings for it to determine "whether the fees, as imposed, were reasonably proportional to the costs of the regulatory program." ( Farm Bureau II, supra, 51 Cal.4th at p. 441,
On remand, the trial court determined that plaintiffs did not establish a prima facie case that the fees collected exceeded the total budgeted cost of the Division's operations, while "the Board presented evidence demonstrating that the total amount raised in fees was less than the cost of supporting the Water Rights Division." In doing so, the court observed that plaintiffs "did not focus their challenge on the actual cost of the Division's regulatory activities in comparison to the aggregate amount of fees raised under the regulations. Instead, they focused on the distinct issue of whether the fees were properly apportioned to and among the payors (actual and potential), contending that the fees allocated to payors did not bear a fair and reasonable relationship to those payors' burdens on or benefits from the regulatory activity." As to that issue, the trial court found that plaintiffs "established a prima facie case that the statutory scheme and its implementing regulations do not 'provide a fair, reasonable, and substantially proportionate assessment of all costs related to the regulation of affected payors' " by producing evidence that RPP right holders, whose rights accounted for 38 percent of all water rights in the state and who are not charged fees, "receive a benefit from the Division's regulatory activities, and also impose some burden on the agency." The trial court further determined that the Board failed to rebut plaintiffs' prima facie case by producing evidence that showed " 'the estimated costs of the service or regulatory activity [and] the basis for determining the manner in which the costs are apportioned, so that the charges allocated to a payor bear a fair or reasonable relationship to the payor's burdens on or benefits from the regulatory activity.' " More particularly, the trial court found that "there is no documentary evidence that would support any particular estimate *1221or finding regarding the proportion of the Division's resources that are devoted to water right holders other than the holders of permits and licenses." It also determined that "the Board did not present any evidence that established that funds other than fees paid for regulatory activities related to non-fee paying rights holders," and "absent any evidence that could quantify the amount of such activities as a proportion of the Division's total regulatory activities, it would not be possible to make any such showing."
C. Analysis
The salient question is not whether "non-fee paying rights holders," i.e., RPP right holders, received something for nothing, but whether the fees allocated to the affected payors, i.e., permit and license holders, were reasonable and substantially proportionate to all costs related to the regulation of those payors . ( Farm Bureau II, supra, 51 Cal.4th at p. 442,
In any event, the Board presented evidence that at most 10 percent of Division resources were spent on matters involving RPP right holders, and that funding sources other than water right fee revenue more than covered the Division's expenditures on such matters. To support its assertion that the administration of the water right permit and license system constituted the vast majority of the Division's activities, the Board relied on a draft report prepared by consultants for Westlands Water District (Westlands), a plaintiff herein, and correspondence between Victoria Whitney, chief of the Water Rights Division, and Thomas Birmingham, general counsel and general manager of Westlands, concerning that draft report. The draft report states in pertinent part: "An estimate from [Board] staff ... indicates that the [Board] may spend as much as 10 percent of Division time on riparian and pre-1914 water rights. This time may more appropriately be funded by others or the general fund." Westlands submitted a copy of the draft report to the Board for the purpose of "initiat [ing] discussions about a resolution to the issues that *1222[it] hoped would avoid this litigation."
The trial court's reliance on a memorandum Whitney prepared, dated April 7, 2004, entitled "Errata to Memorandum Dated December 29, 2003 Regarding the Water Right Fee Program Summary and Recommended Fee Schedule for Fiscal Year 2003-2004," for the proposition that the Division spends "significantly more than five percent" of its time on resources or activities that benefit RPP right holders, is misplaced. That memorandum states in pertinent part: "In fact, as a portion of the Division's overall administration of water rights, approximately one-third of the Division's time is spent for the purpose of protecting the environment and the public interest and two-thirds of the time is spent on activities that protect prior right holders. Some of the Division's time is spent on efforts to protect parties who claim and appear to have water rights that are not within the [Board]'s permitting authority. Furthermore, once a permit or license is issued, most of staff's efforts are associated with ensuring that the permit or license holder complies with the conditions of the water right permit and with issuing a license to water right permit holders." Whitney's statement that some of the Division's time is spent on activities *157that protect RPP right holders does not suggest that any particular amount of time on such efforts, only that it spends some time. To the extent the trial court equated "prior right holders" with RPP right holders, and interpreted Whitney to suggest that the Division spends two-thirds of its time on activities that protect RPP right holders, such an interpretation is unsupported in the record or the law. In the memorandum, Whitney distinguishes between "prior right holders" and "parties who claim and appear to have water rights that are not within the [Board]'s permitting authority," i.e., RPP right holders. Moreover, while the term "prior right holder" may include RPP right holders, it is by no means limited to those right holders. It also may include permit and license holders. (See generally *1224El Dorado Irrigation Dist. v. State Water Resources Control Bd. (2006)
Having found that the Board produced evidence the Division devoted roughly 10 percent of its resources to RPP right holders, we now turn to whether those resources came from the water right fee assessed in fiscal year 2003-2004. To support its assertion that the Division received substantial funding from sources other than the challenged water right fees, the Board relied on the Governor's proposed budget for fiscal year 2003-2004, the final budget act for fiscal year 2003-2004, and related documents. The Governor's proposed budget for fiscal year 2003-2004, which ran from July 1, 2003, through June 30, 2004, and was presented prior to the enactment of Senate Bill 1049, proposed $8.7 million for the water rights program, $7.2 million of which was to come from the state's general fund. Under the final budget act, the program's total appropriation was increased to $9 million, and $4.4 million of that amount was to come from the new Water Rights Fund, thereby reducing the amount payable from the state's general fund. As explained in the final change book to the Governor's fiscal year 2003-2004 budget, "[f]ee revenues would be deposited in the newly created Water Rights Fund and used to offset General Fund expenditure reductions ." (Italics added.) In fiscal year 2003-2004, the Division's actual costs totaled $9.066 million. Roughly 51 percent of that amount was paid for by water right fees ($4.608 million), 43 percent from the state's general fund ($3.865 million), and the remaining 6 percent from the tobacco tax fund ($355,000), federal trust fund ($150,000), and reimbursements ($88,000). Thus, the water right fee reduced, but did not replace, general fund support for the Division's regulatory activities in fiscal year 2003-2004, and there was more than enough general fund support to cover the costs attributable to RPP right holders.
Plaintiffs dispute the Board's claim that the water right fee accounted for only half of the Division's budget for fiscal year 2003-2004, arguing that "[t]he fees were imposed for the second half of the fiscal year after [Senate Bill] 1049 was enacted." Plaintiffs, however, fail to point to any evidence in support of their argument. Rather, they cite the following statement from the factual and procedural background in Farm Bureau II : "The proposal called for General Fund support for the first half of the 2003-2004 fiscal year with fee increases covering the second half of the year." ( Farm Bureau II, supra , 51 Cal.4th at p. 430, fn. 10,
In addition, plaintiffs' claim that the fees were imposed for the second half of the fiscal year is at odds with the language of section 1525, subdivision (e), which provides: "Annual fees imposed pursuant to this section for the 2003-04 fiscal year shall be assessed for the entire 2003-04 fiscal year ." (Italics added.) It is also inconsistent with section 1552, which states in pertinent part that "moneys in the Water Rights Fund are available for expenditure, upon appropriation by the Legislature ...." (Italics added.) In fiscal year 2003-2004 money in the Water Rights Fund was appropriated and available for expenditure on August 2, 2003, the day the final budget took effect, which was well within the first half of the fiscal year, which ran from July 1, 2003, through June 30, 2004. Thus, while the fee was not assessed until the second half of the fiscal year, the monies appropriated by the Legislature for the Water Rights Fund were available for expenditure in the first half of the fiscal year. At the remand trial, the Board produced evidence showing that Division expenditures were charged against the Water Rights Fund appropriation during the first half of fiscal year 2003-2004, and that as of December 31, 2003, 56.7 percent of that appropriation had been spent. The Board's budget officer explained that it is common for expenses to be paid from a "clearing account" until special fund revenues are received.
Plaintiffs' reliance on statements by the Board to support their assertion that the water right fee was used solely to support the Division's activities in *1226the second half of fiscal year 2003-2004 is misplaced. Whether the water right fee imposed in fiscal year 2003-2004 accounted for all or nearly all of the Division's funding in the second half of the fiscal year is determined by examining the statutory language and evidence related to appropriations and expenditures *159from the Water Rights Fund, not by the Board's musings.
Finally, we reject the trial court's finding that the Board failed to consider "proportional allotment in enacting the fee regulations," and that the annual fee is invalid on that basis alone. The record shows that the Board did consider whether the fee represented a fair, reasonably, and substantially proportionate assessment of all costs related to the regulation of affected payors. When the LAO recommended that general fund support for the water rights program be fully replaced with "a new annual compliance fee" assessed permit and license holders, the Board objected on the ground that allocating Division costs entirely to permit and license holders was unfair because permit and license holders would necessarily be paying for costs attributable to RPP right holders, who also benefited from the Division's activities but would not be assessed a fee. As detailed above, general fund support for the water rights program was not fully replaced by the new annual fee in fiscal year 2003-2004. Under the final budget act, the Division's total appropriation was $9 million, only $4.4 million of which was payable from the new Water Rights Fund. The remainder of the Division's funding came primarily from the state's general fund. The trial court appears to have faulted the Board for failing to consider that permit and license holders necessarily would be paying for costs attributable to RPP right holders-a situation that did not exist. In any event, even assuming for argument's sake that the Board had failed to consider proportionality in developing the fee regulations, that alone would not be a sufficient basis on which to invalidate the regulations. Plaintiffs must show that they were prejudiced by the Board's action. The Board's adoption of the water right fee regulations involved a quasi-legislative action that is reviewed under the standards of ordinary mandamus. ( Home Builders Assn. of Tulare/Kings Counties, Inc. v. City of Lemoore (2010)
II
The Trial Court Erred in Concluding That Regulation 1073 Violated the Supremacy Clause
The trial court determined that regulation 1073, which allocates the USBR's annual fee for projects within the CVP to the CVP contractors, is unconstitutional under the supremacy clause because the allocation is not limited to the contractors' beneficial or possessory use of the USBR's water rights. The Board contends that because CVP contractors "get all available project water after all legal requirements are satisfied," it fairly and reasonably valued the CVP contractors' beneficial interests in those rights at 100 percent. We agree with the Board.
A. The Applicable Law
"Under established principles of sovereign immunity, the federal government is immune from state taxation absent its consent." ( Farm Bureau II, supra, 51 Cal.4th at p. 443,
B. The Proceedings on Remand
In Farm Bureau II, our Supreme Court agreed with the Board "that a fair determination of the [CVP] contractors' beneficial interest must include consideration of the system that supports and ensures the delivery of the amount contracted, not just the amount of water contracted for delivery." ( Farm Bureau II, supra, 51 Cal.4th at p. 446,
On remand, the trial court concluded that (1) plaintiffs "established a prima facie case that the fee regulations as applied to [CVP] contractors are invalid because the regulations are not based on a fair evaluation of the contractors' beneficial or possessory interests," and (2) the Board "failed to refute that prima facie case by producing evidence that would permit the Court to determine that the contractors' beneficial or possessory interests, in the aggregate, are equal to [the USBR's] total water rights, and that all water not actually under delivery to contractors is fairly attributable to the value of the delivery contracts themselves." In doing so, the court found that there was "no evidence whatsoever that the Board considered the beneficial interests of contractors, as defined by the Supreme Court, in adopting the fee regulations," and concluded that "[t]he fee regulations must be invalidated on this basis alone." In addition, the trial court dismissed the Board's assertion that all of the USBR's CVP water rights above contract amounts were necessary to deliver water to the contractors as "an attempt at post hoc validation of an arbitrary decision," noting that "the complete lack of any evidence that could *1229support an accurate quantification of the contractors' beneficial or possessory interests, reinforces this impression." It also rejected the Board's rationale on the merits, reasoning, "The concept of the [CVP] as an integrated project serving multiple uses, with contractors not in the highest priority, is not really disputed in this case. But accepting this concept really only established that some amount of water not actually under contract may be fairly attributable to the value of the contractors' delivery contracts. It does not necessarily follow that 100% of the water not actually under contract should be so attributed." (Fn. omitted.) The court found it significant that the Board had never "done an analysis of the contractors' beneficial or possessory interests in the [USBR's] [CVP] permits," (fn. omitted) finding that without any such analysis, the Board's rationale that all of the USBR's water rights were necessary to support deliveries to contractors "lacks any convincing evidentiary basis." Finally, the court concluded that plaintiffs "presented significant probative and persuasive evidence that the beneficial or possessory interests of the [CVP] contractors could not be valued at 100% of [the USBR's] water rights for the Project" by demonstrating that "the contractors in reality have no actual guaranteed right to delivery of any amount of water, regardless of the face amounts of their contracts, and ... frequently receive far less water than those face amounts." (Fn. omitted.)
C. Analysis
Whether regulation 1073 violates the supremacy clause by allocating the entire annual fee for the USBR's CVP permits and licenses to the CVP contractors turns on whether the Board fairly and reasonably valued the CVP contractors' beneficial interests in the USBR's water rights at 100 percent.
As a preliminary matter, the trial court's finding that there is no evidence the Board considered the contractors' beneficial interests in adopting the fee regulations is not supported by substantial evidence. The Board's decision to limit the fees it passed through to the contractors to those for projects within the CVP (regulation 1073, subd. (b)(2)) shows that it considered the contractors' beneficial interest in the USBR's water rights in adopting the fee regulations. Moreover, at the remand trial, Whitney testified that she considered how much of the USBR's annual fee for projects within the CVP should be passed *162through to the contractors and recommended 100 percent.
We now turn to whether the Board fairly and reasonably evaluated the contractors' beneficial interest in the USBR's CVP water rights at 100 percent. An understanding of the history of the CVP, which is well chronicled, is essential to the resolution of this issue.
"The CVP is a federal reclamation project built within the major watersheds of the Sacramento and San Joaquin River systems and the Sacramento-San Joaquin Delta (Delta), providing water storage and distribution to the Central Valley of California. A recent federal opinion noted the following legal and factual background: 'Reclamation projects are indispensible features of agriculture in the Western United States. "The Reclamation Act of 1902 set in motion a massive program to provide federal financing, construction, and operation of water storage and distribution projects to reclaim arid lands in many Western States." [Citations.] ... [¶] The [CVP] is "a system of dams, reservoirs, levees, canals, pumping stations, hydropower plants, and other infrastructure [that] distributes water throughout California's vast Central Valley." [Citation.] The CVP was originally "taken over and executed" by the United States under the Reclamation Act and was reauthorized by the Rivers and Harbors Act of 1937, Pub. L. No. 75-392,
*163*1231"As built and operated, the CVP is 'the nation's largest water reclamation project and California's largest water supplier.' ( In re Bay-Delta etc. (2008)
"In the original 1937 CVP act, Congress prioritized the purposes of the CVP as ' "first, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses; and, third, for power." ' ( San Luis Unit , supra,
In 1978, to take account of the combined effects of the CVP and state water project upon the Sacramento-San Joaquin Delta (Delta), the Board modified the USBR's permits to require the USBR to meet new water quality standards in the Delta and Suisun Marsh by either releasing water from storage or curtailing diversions, so that outflow from the Delta would be sufficient to prevent sea water from intruding into the Delta. ( United States v. State Water Resources Control Bd. (1986)
"In 1992, Congress passed the Central Valley Project Improvement Act (the CVPIA; Pub.L. No. 102-575 (Oct. 30, 1992)
"As this regulatory overview confirms, the [USBR] operates the CVP and allocates CVP water subject to a comprehensive scheme of environmental statutes and regulations, including the environmental requirements of the CVPIA, the federal Endangered Species Act of 1973 (
The USBR operates the CVP under water right permits and licenses issued and regulated by the Board, administers CVP water, and enters into contracts to provide that water to contractors. ( North Coast, supra , 227 Cal.App.4th at pp. 839, 841,
"CVP water is available only through a water service contract between the water user and the [USBR]. There are three categories of contracts for the provision of CVP federal water supply. The first category is comprised of 'Exchange Contracts' that give express contractual priority to designated 'Exchange Contractors' on the basis of their pre-1914 riparian and appropriative rights to the San Joaquin River. [Citation.] These Exchange Contractors 'traded' their preexisting water rights to the [USBR]. [Citation.] The [USBR] obtained water permits from the [Board] that were co-extensive with the exchanged water rights. The [USBR] in turn entered into water service contracts with the Exchange Contractors for CVP federal water supply on a priority access basis." ( Tehama-Colusa Canal Auth. v. United States DOI (9th Cir. 2013)
"The second category of CVP contracts encompasses 'Settlement Contracts' that grant a contractual priority to CVP water supply through the inclusion of provisions limiting the extent of shortage amounts. These contracts typically arose from preexisting water rights." ( Tehama-Colusa, supra, 721 F.3d at p. 1091.) The settlement contractors are entities along the Sacramento River that hold pre-existing direct diversion water rights. Prior to Shasta Dam being built, there were high flows in the wintertime and low flows in the summertime. Sometimes the flows were so low that junior rights holders would not be able to divert any water. Once the Shasta Dam was in place and the Sacramento River was regulated, these entities "received a full supply, but [the USBR] knew that some of the water that they were diverting under certain circumstances was there because of the projects."
*165Accordingly, the USBR and these entities negotiated "settlement contracts" pursuant to which the settlement contractors receive a certain amount of "base supply water" annually without any fee, and other "project water" for which they do pay a fee. The base supply water may only be reduced by 25% in critically dry years, and the duty to deliver it is mandatory. ( Id. at p. 1099.) In 2004, the base supply for the settlement contracts totaled roughly 1.8 million acre-feet. The Board did not assess any water right fees on settlement contractors for base supply water because those contractors held pre-existing rights to divert that water before the CVP was constructed; it did, however, assess water right fees for any supplemental entitlement, i.e., project water, under those contracts. (Regulation 1073, subd. (b)(2).)
"The third category contains contracts held by CVP contractors north-of-Delta, in-Delta, and south-of-Delta. This category of CVP contractors ... held no pre-existing water rights to offer as consideration, and therefore receives no priority access to CVP water supply." ( Tehama-Colusa, supra, 721 F.3d at p. 1091.) The CVP contractors in this case are members of this third category.
The Board's characterization of the CVP as a "water supply project" was not only reasonable, it was accurate. Water delivery is the raison d'être of the CVP. As the cases cited above recognize and the United States Supreme Court explained in United States v. Gerlach Live Stock Co. (1950)
That the CVP has other congressionally authorized purposes, some of which Congress has prioritized over irrigation and domestic uses, does not alter CVP's fundamental status as a water supply project. For example, as previously discussed, salinity control is prioritized over irrigation and domestic uses ( U.S. v. SWRCB,
The fact that permit conditions such as those at issue in U.S. v. SWRCB , or other obligations imposed on the USBR by the state and federal governments, have reduced the amount of CVP water available for delivery to the CVP contractors does not diminish the contractors' beneficial interest in the CVP permits and licenses. As detailed above, the USBR operates the CVP and allocates CVP water subject to a *166comprehensive scheme of environmental statutes and regulations, and various state and federal regulations. ( North Coast, supra, 227 Cal.App.4th at p. 843,
The trial court erred in concluding that the CVP contractors' beneficial interest in the USBR's CVP water rights could not be valued at 100 percent because "the contractors in reality have no actual guaranteed right to delivery of any amount of water, regardless of the face amounts of the contracts, and ... frequently receive far less water than those face amounts." (Fn. omitted.) The beneficial interest at issue here is in the USBR's water rights, not the water itself. "The issuance of a permit gives [the USBR] the right to take and use water only to the extent and for the purpose allowed in the permit." (§ 1381) The right conferred is the "right to use the water-to divert it from its natural course." ( U.S. v. SWRCB , supra, 182 Cal.App.3d at p. 100,
III
The Trial Court Erred in Concluding That the Fee Regulations Are Invalid Because They Operate in an Arbitrary Manner as to One Fee Payor
The trial court also determined that the fee regulations, as applied to Imperial Irrigation District (IID), "operate in an arbitrary and capricious manner as a result of the fact that fees are calculated strictly on the basis of the face amount of water covered by permits and licenses," and are invalid on that basis. The trial court based its determination on the following: "... IID obtains water from the Colorado River and transports it though the All-American Canal for eventual delivery to its customers. ... IID does have a permit from the Board for the water it takes from the Colorado River. It also has six additional permits from the Board for the same water involving its use for hydroelectric power generation at various drop structures along the All-American Canal. The Board charges IID a fee based on the face amount of all seven permits, even though all seven permits involve the same water originally diverted from the Colorado River. ... [¶] By contrast, ... the California Department of Water Resources ("DWR"), is treated quite differently with regard to the water rights it holds for operation of the State Water Project. One of those water rights is a permit allowing DWR to divert and store water behind Oroville Dam, release that water from storage, and redivert the same water at 16 separate diversion facilities from Oroville to Perris Dam, in Riverside County. As the water travels southwards, it is used to generate power at nine separate power plants, which is quite similar to what IID does with the water in the All-American Canal. In DWR's case, however, the water is covered by a single permit, instead of seven separate permits as in the case of IID, and DWR is charged a fee only on the face amount of that single permit." (Fns. omitted.)
Lack of uniformity alone is insufficient to establish that a regulatory fee is unreasonable and thus unlawful. ( Brydon v. East Bay Mun. Utility Dist. (1994)
DISPOSITION
The judgment invaliding the fee regulations is reversed. The Board is entitled to its costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur:
Robie, J.
Butz, J.
Further undesignated statutory references are to the Water Code.
California Constitution, article XIII A, section 3, was originally approved by initiative as Proposition 13, on June 6, 1978.
At the remand trial, the parties and trial court agreed that the Supreme Court had directed the trial court to make findings concerning "[t]he fee structure and the administrative actions taken as of 2003 and 2004, not the current state of affairs." Accordingly, the trial court limited its findings and the judgment to the fee regulations "as adopted by Resolution 2003-0077 in 2003-2004."
The trial court also invalided regulation 1071, which sets forth a fee formula for activities involving the diversion or use of water for the purpose of diverting water for hydropower generation. (Cal. Code Regs., tit. 23, § 1071.)
Plaintiffs moved to strike portions of the Board's opening brief on the ground that the brief "cites to and relies on materials, as substantive evidence, that were not before the Trial Court." Having deferred ruling on the motion pending assignment of a panel and filing of the opinion in this court, we now deny it. All of the materials that are the subject of the motion to strike are from the appendix for the prior appeal in this case, which, in turn, are from the original trial court writ proceedings. As the trial court acknowledged, the remand trial was not a "separate trial," it was a "further trial" on the writ. Moreover, California Rules of Court, rule 8.124(b)(2) provides that "[a]n appendix may incorporate by reference all or part of the record on appeal ... in a prior appeal in the same case." It also bears noting that while plaintiffs' motion to strike addresses several items, the focus of the motion is on one document, an April 15, 2004, letter from Arthur G. Baggett, Jr., to Assemblymember Joseph Canciamilla (Baggett Letter). As the Board correctly notes in its opposition to the motion to strike, the Board does not rely on the Baggett Letter as substantive evidence in its opening brief. And we have not considered the Baggett Letter for any purpose in resolving the issues raised in this appeal.
Plaintiffs also moved to strike portions of the Board's supplemental letter brief. We shall deny the motion as moot because we did not rely on either parties' supplemental briefs in determining the issues raised in this appeal.
An appropriative right is the right to take water from a watercourse that does not run adjacent to a landowner's property. (Farm Bureau II, supra, 51 Cal.4th at p. 429,
"Under the common law riparian doctrine, a person owning land bordering a stream has the right to reasonable and beneficial use of water on his or her land." (Farm Bureau II, supra, 51 Cal.4th at p. 429, fn. 7,
" 'A pueblo water right ... is the paramount right of an American city as successor of a Spanish or Mexican pueblo (municipality) to the use of water naturally occurring within the old pueblo limits for use of the inhabitants of the city.' " (Farm Bureau II, supra, 51 Cal.4th at p. 429, fn. 8,
Subdivision (b) of section 1525 sets forth a series of mandatory filing fees. Those fees are not at issue in this appeal.
Subdivision (c) of section 1525 sets out "recoverable costs" in substantial detail, but the costs recoverable are "not limited to" the activities identified.
Subdivision (d)(3) was amended in 2011. As amended, it provides that the Board "shall set the amount of total revenue collected each year through the fees authorized by this section at an amount equal to the amounts appropriated by the Legislature for expenditure for support of water rights program activities from the Water Rights Fund established under Section 1550, taking into account the reserves in the Water Rights Fund." (Stats. 2011, ch. 579, § 9.)
More precisely, the face value of a permit is the amount of water the applicant has estimated it can put to beneficial use, including reasonable conveyance losses (Cal. Code Regs., tit. 23, § 696 ), while the face value of a license-the perfected water right-is the amount of water the Board has determined the licensee was able to put to beneficial use (§ 1610).
The face value of permits and licenses for projects licensed by the Federal Energy Regulatory Commission (FERC) was reduced by 70 percent, and the face value of permits and licenses for non-FERC projects was reduced by 50 percent.
The Board also imposed one-time filing fees on applications for new permits and licenses and petitions to change terms and conditions of existing permits and licenses. (See Cal. Code Regs., tit. 23, §§ 1062, 1064.) It assumed that filing fees would generate $207,400 annually, which correspondingly reduced the amount of revenue to be assessed through annual fees.
" 'Base supply' means the amount of water delivered to a water user by USBR from the Central Valley Project that is designated as base supply in a water supply contract between the user and the USBR." (Regulation 1073, subd. (e)(1).) " 'Supplemental supply entitlement' means the amount of water exceeding base supply delivered from the Central Valley Project to a water user." (Regulation 1073, subd. (e)(2).)
The Board of Equalization has since been reorganized and for purposes of this appeal is now the California Department of Tax and Fee Administration.
Birmingham testified that he thought "the report was in sufficient form and content that we could transmit it to the Water Board to initiate discussions about a resolution to the issues that we hoped would avoid this litigation."
Birmingham testified that the first draft report was prepared by outside technical consultants retained by Westlands, and that the views contained therein were those of the individuals who prepared it. During the Board's cross-examination of Birmingham concerning the draft report, the trial court observed: "You're asking [Birmingham] to interpret what somebody else's words mean in a document that's in evidence and the document speaks for itself, and regardless of what you and he think it means, the court will consider what the words in a document in evidence means."
Citing evidence of "Board decisions involving [RPP] water rights," the trial court found that plaintiffs "demonstrate[d] that the Division devotes an unquantified, but clearly non-trivial, proportion of its resources to issues involving those classes of fee-exempt water right holders." The Board disputes the trial court's finding that the decisions involved RPP water rights and argues that 9 of the 11 decisions were outside the relevant time period. We need not address the Board's claims because the trial court's finding that the "Division devotes an unquantified, but clearly non-trivial, proportion of its resources to issues involving ... [RPP] right holders" is consistent with evidence the Division devotes 10 percent of its resources to RPP right holders. Moreover, the trial court relied on the Board decisions in finding that plaintiffs established a prima facie case that the fees were not properly allocated. At that point, the burden of production shifted to the Board (Farm Bureau II, supra, 51 Cal.4th at pp. 436-437,
Plaintiffs also cite to a document entitled "Frequently Asked Questions Regarding Water Right Fees," which says nothing about the fees being imposed to support the second half of the fiscal year. Rather, it states in pertinent part: "In an effort to reduce the state's current budget deficit, the Legislature this year decreased General Fund support for the water right program by almost 30 percent. In addition, the Legislature determined that the funding source for almost half the remaining allocation in Fiscal Year 2003-2004 should be shifted from the General Fund to a special fund financed by water right holders." This is consistent with the Board's claim that the water right fee accounted for roughly half of the Division's budget for fiscal year 2003-2004.
The factual and procedural background in Farm Bureau II "is largely adopted" from our opinion in Farm Bureau I (Farm Bureau II, supra, 51 Cal.4th at p. 428, fn. 4,
In any event, none of the statements relied on by plaintiffs explicitly states that the water right fee was in fact used to support the Division's activities in the second half of fiscal year 2003-2004. The statements are as follows: "In practical effect , the budget provided general fund support for the first six months of the year, with fee support for the balance of the fiscal year." (Italics added.) "[T]he general funding to support the Division will expire as of December 31st." "In an effort to reduce the state's current budget deficit, the Legislature this year decreased General Fund support for the water right program by almost 30 percent. In addition, the Legislature determined that the funding source for almost half the remaining allocation in Fiscal Year 2003-2004 should be shifted from the General Fund to a special fund financed by water right holders. As a result, the Legislature has directed the [Board] to implement fees to raise revenues of $4.4 million."
To the extent plaintiffs claim that the trial court found all of Whitney's testimony lacked credibility, they are mistaken. The trial court found that her testimony that the Division spends approximately five percent of its resources protecting the rights of RPP right holders "lack [ed] credibility or any reasonable foundation" due to the lack of documentary evidence to support it.
To support their claim that the fees assessed on the CVP contractors exceeded their beneficial interest in the CVP permits and licenses, plaintiffs compare the face value of the CVP permits and licenses (112 million acre-feet) with the face value of the contractors' contracts (6.6 million acre-feet). Such a comparison is misleading because it suggests that CVP has 112 million acre-feet of water available when that is not the case. As detailed above, CVP's total storage capacity is roughly 12 million acre-feet. (In re Bay-Delta, etc., supra, 43 Cal.4th at p. 1154, fn. 1,
"Usufructuary" relates to a "usufruct" which is "[a] right to use another's property for a time without damaging or diminishing it ...." (Black's Law Dict. (7th ed. 1999) pp. 1542, 1543.)