I dissent.
This case comes to us at the pleading stage, a general demurrer having been sustained without leave to amend. Our task is to ascertain whether any cause of action in the complaint, liberally construed, states facts indicating plaintiffs are entitled to some relief. (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 123 [109 Cal.Rptr. 799, 514 P.2d 111].) The majority decide this case by declaring, as a matter of law, that defendants have valid defenses. I would hold that the pleadings justify giving plaintiffs and the County of Sacramento their day in court.
I
It is incongruous for EBMUD, a creation of the state, to insist upon a right to violate state water law simply because of a contrived conflict with the source from which it chooses to purchase water. I submit that an agency dependent upon the State of California for its existence cannot voluntarily undertake to buy water from a federal bureau and then set up as a defense to the alleged impropriety of its actions a claim that state law is not applicable to its decision to enter into the transaction.
The problem of preemption is not unduly complicated. If any agency were to attempt to place in issue, or to dictate to a federal bureau, the terms which the latter may impose as to the quantity, price, site or other conditions for the sale of water from a federal project, undeniably there would be preemption and federal law would prevail. (Ivanhoe Irrig. Dist. v. McCracken (1958) 357 U.S. 275 [2 L.Ed.2d 1313, 78 S.Ct. 1174].) But that is not involved here. The plaintiffs, and the County of Sacramento as intervener, do not seek to impose their will on or to challenge the *347federal government, but merely to hold a state-created agency accountable under state law for whether and to what extent it may initiate a contract to purchase water. Under these circumstances there is no federal-state controversy which invokes the doctrine of preemption. The only conflict here is between the plaintiffs and the County of Sacramento on the one hand and a state-created agency on the other as to the propriety of action taken by the latter.
Defendants rely upon a series of Supreme Court decisions (City of Fresno v. California (1963) 372 U.S. 627 [10 L.Ed.2d 28, 83 S.Ct. 996], Dugan v. Rank (1963) 372 U.S. 609 [10 L.Ed.2d 15, 83 S.Ct. 999], and Ivanhoe Irrig. Dist. v. McCracken, supra, 357 U.S. 275, to support the proposition that since EBMUD will be buying federal water, federal and not state law applies to the transaction of purchase. That broad principle is correct, but in this context it is a non sequitur.
The plaintiffs do not challenge the validity or terms of the executed contract with the federal bureau. They complain that EBMUD improperly initiated the contract in the first instance because it does not need American River water, and that even if there is a need it should seek a point of diversion closer to home in order to afford multiple use—recreational, fishing, wildlife, as well as municipal and industrial—of American River water.
The assault is not upon the federal contract per se but upon the decision of EBMUD to obtain a supplemental supply of water and to seek it by the means proposed. Thus for plaintiffs to prevail they must show only-that EBMUD’s original decision to proceed, under the facts alleged' and to be proved, violates state law. Validity of the terms and conditions of the ultimate federal contract, which undeniably is controlled by federal law, is irrelevant to the issues framed by the complaint.
II
Even if, arguendo, we accept the faulty premise of the majority that federal law should apply to the problem before us, the applicable federal provisions refer directly back to state law, somewhat in the nature of a renvoi. The Auburn-Folsom South Unit of the Central Valley Project was authorized by an act of Congress enacted in 1965 (43 U.S.C. § 616aaa et seq.). While construction was to be undertaken pursuant to federal reclamation laws, the Secretary of the Interior was directed to *348allocate water “in accord with state water laws” (Aubum-Folsom South Act, § 5, 43 U.S.C. § 616eee).
Legislative history confirms this intent of Congress. In relevant part the Committee on Interior and Insular Affairs issued a report on the project which declared: “The committee’s decision [to include the section] was based on the fact that the Aubum-Folsom South project is a wholly intrastate project, with the waters of the American River arising wholly in the State of California and their use and disposition being wholly in the State of California. Therefore, the committee was of the opinion that the laws of the State of California with respect to allocation of water should be followed by the Secretary of the Interior, including the provisions assuring protection to counties and areas of origin. Furthermore, the committee’s action simply retains the effect of basic Central Valley project legislation and is consistent with past practices.” (Sen. Rep. No. 1289, 88th Cong., 2d Sess., (1964) pp. 3-4.)
While the act was not passed until the following year, at which time the Secretary of the Interior attempted unsuccessfully to persuade Congress to delete section 5 and its reliance upon state law, the measure was enacted in the originally recommended form.
Subsequent congressional acts give strong indication of the continuing intent to preserve the environment and in the quest to do so to yield to the states. Thus the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. § 4331) refers to the “policy of the Federal Government, in cooperation with state and local governments, ... to use all practicable means and measures, ... to create and maintain conditions under which man and nature can exist in productive harmony.”
The Federal Water Pollution Control Act Amendments of 1972 (33 U.S.C. § 1251(b)) are even more precise: “It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this Act.” The amendments also give the highest order of priority to “the reclamation of wastewater” (33 U.S.C. § 1281(d)(3)).
*349Thus it seems abundantly clear that in this sensitive field of environmental protection, not only does no conflict emerge between federal and state policy, but the federal government has indicated a decided preference to defer to “the primary responsibilities and rights of States.”
It should be apparent that the primary responsibilities and rights of California apply particularly to the American River, which is an entirely intrastate stream rising from its source in the Sierra Nevada Mountains and flowing southwestward to the City of Sacramento where it joins the Sacramento River. The American River has traditionally been utilized by the public as a scenic, sporting and recreational resource. Within recent years the County of Sacramento has acquired 2,000 acres of land along both banks of the river as an open-space green belt for recreational and scenic purposes.
Consistent with state preeminence over this intrastate stream, in 1970 when the State Water Resources Control Board issued appropriation permits to the federal Bureau of Reclamation for the Aubum-Folsom South Unit, it reserved jurisdiction to determine and prescribe minimum flows to be maintained in the American River for fish, wildlife and recreational purposes. Again in 1972, the State Water Resources Control Board ordered a minimum flow of 800 to 1,250 cubic feet of water per second for protection of fish and wildlife. That the state was prescribing the flow of water from a federally constructed project did not appear to raise any spectre of federal preemption. The EBMUD contract involved here will directly affect that same flow of water.
EBMUD will take delivery of the new supply from the Folsom South Canal. Since the water will be diverted from the canal, it will not be available to flow down the Lower American River, that section directly upstream of its joinder with the Sacramento River. It is plaintiffs’ contention that if the supply were to be diverted from the Sacramento River below the confluence of the American River, the water could be released from Folsom and Nimbus Dams, flow down the American River where it could be used for fish, wildlife and recreational purposes, and then be diverted by EBMUD, if indeed EBMUD needs additional water.
Plaintiffs’ contentions find support in an official decision of the State Water Resources Control Board which criticized the choice by EBMUD of the Folsom South Canal as the point of diversion. It emphasized that *350the upstream rather than downstream delivery will constitute a deprivation of the possibility for multiple beneficial use of the water which EBMUD will purchase, and in effect deprive the American River of the equivalent of 210 cubic feet per second of flow.
Ill
If we apply state law originally, or as in a renvoi the federal law which refers back .to state law, we must consider relevant provisions of California law.
As indicated above, EBMUD is a local public agency of the State of California, organized under the Municipal Utility District Act. (Pub. Util. Code, § 11501 et seq.) A local agency may exercise only such powers as have been authorized by the laws of the state. (Irwin v. City of Manhattan Beach (1966) 65 Cal.2d 13, 20 [51 Cal.Rptr. 881, 415 P.2d 769].) Its very being and the extent of its authority is dependent upon the Legislature and limited by the provisions of the California Constitution. (State of California v. Marin Mun. W. Dist. (1941) 17 Cal.2d 699 [111 P.2d 651].) Thus the contractual powers of EBMUD must be determined exclusively by reference to the legislation under which it exists and to relevant constitutional provisions. (Stimson v. Allessandro Irr. Dist. (1902) 135 Cal. 389, 392 [67 P. 496, 1034].) If a contract entered into by EBMUD violates a California constitutional principle, the contract exceeds the agency’s powers and is void. (Allen v. Hussey (1950) 101 Cal.App.2d 457, 472 [225 P.2d 674]; County of Alameda v. Ross (1939) 32 Cal.App.2d 135, 146 [89 P.2d 460].)
Article X, section 2, of the Cálifornia Constitution is the dispositive provision of our law. In a self-executing section, the Constitution 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 method of use or unreasonable method of diversion of water....”
*351For added emphasis the Legislature has enacted similar provisions in Water Code section 100. This section, together with the explicit constitutional restriction, comprise the basic tenets governing water distribution in California, a subject that has given rise to scores of controversies since Gold Rush days.
The fundamental water law of California was succinctly outlined by this court in Peabody v. City of Vallejo (1935) 2 Cal.2d 351, 367 [40 P.2d 486]:
“1. The right to the use of water is limited to such water as shall be reasonably required for the beneficial use to be served.
“2. Such right does not extend to the waste of water.
“3. Such right does not extend to unreasonable use or unreasonable method of use or unreasonable method of diversion of water.
J
“4. Riparian rights attach to, but to no more than so much of the flow as may be required or used' consistently with this section of the Constitution.
“The foregoing mandates are plain, they are positive, and admit of no exception. They apply to the use of all water, under whatever, right the use may be enjoyed.”
Application of the Peabody inhibitions in particular factual contexts is inevitably subject to fluctuating determinations. Certainly it does not lend itself to straitjacket dispositions as a matter of law.
As stated in People ex rel. State Water Resources Control Bd. v. Forni (1976) 54 Cal.App.3d 743, 750 [126 Cal.Rptr. 851]: “it seems evident that the overriding principle governing the use of water in California is that such use be reasonable. However, as repeated on innumerable occasions, what is reasonable use or reasonable method of use of water is a question of fact to be determined according to the circumstances in each particular case. [Citations.]” And, as observed in Tulare Dist. v. Lindsay-Strathmore Dist. (1935) 3 Cal.2d 489, 567 [45 P.2d 972]: “What may be a reasonable beneficial use, where water is present in excess of all needs, would not be a reasonable beneficial use in an area of great scarcity and great need. What is a beneficial use at one time may, *352because of changed conditions, become a waste of water át a later time.” To the same effect are opinions of this court in Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 139 [60 Cal.Rptr. 377, 429 P.2d 889]; and Gin S. Chow v. City of Santa Barbara (1933) 217 Cal. 673, 706 [22 P.2d 5],
Since the law of California is so crystal clear that reasonableness of use, reasonableness of methods of diversion and prevention of waste are questions of fact under the circumstances of each case, the majority fall into grievous error in deciding the issues herein as a matter of law. I would give these plaintiffs an opportunity to prove their allegations before a trier of fact.
IV
Finally, with regard to the cause of action relating to failure of EBMUD to recycle wastewater, it is remarkable that the majority lean on a theory that relief must be sought from State Water Resources Control Board. For more than a century it has been deemed elementary that this court will refuse to consider issues not raised by the parties below. (Parkside Realty Co. v. MacDonald (1913) 166 Cal. 426, 432 [137 P. 21]; Duff v. Fisher (1860) 15 Cal. 375, 381; Lotts v. Board of Park Commrs. (1936) 13 Cal.App.2d 625, 636 [57 P.2d 215].) None of defendants’ demurrers in this action invoked a jurisdictional contention, or a claim that administrative remedies had not been exhausted. The trial court’s memorandum opinion made no reference to that doctrine as a basis for its judgment. None of the defendants raised the point in the Court of Appeal, and even here their contention was merely that this complex water problem is more legislative than judicial in substance. The administrative remedy issue should not have been considered by this court, and certainly not employed as the foundation for an opinion.
I would reverse the judgment and send the matter back to the trial court for a full hearing on the merits.
The petition of the plaintiffs and appellants for a rehearing was denied February 23, 1978, and the opinions were modified to read as printed above. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.