Concurring and Dissenting. — I concur in the judgment and in the opinion except that I dissent from the reasons given in support of parts IIA and IIB of the Discussion.
This case arises on the review of the quasi-adjudicatory action of the State Water Resources Control Board (the Board) that imposed a condition on permits issued to the El Dorado Irrigation District and the El Dorado County Water Agency (jointly El Dorado). The condition, standard term No. 91, requires El Dorado to curtail its diversion of water from the American River and Folsom Dam when the United States Bureau of Reclamation (the Bureau) or the Department of Water Resources (the Department) is releasing stored water from the Central Valley Project (CVP) or the State Water Project (SWP) (jointly the projects) to meet water quality objectives in the Sacramento-San Joaquin Delta (Delta) for salinity control and the protection of fish and wildlife.
The trial court ruled in favor of El Dorado. An appeal was taken by the Board, Westlands Water District (Westlands) and State Water Contractors *980(parties which contract with the CVP for water),1 but not by the Department.2 The Bureau did not make an appearance.3
El Dorado is the beneficiary of an assignment by the state of 1927 priority rights to appropriate water from the South Fork of the American River for consumptive use within El Dorado County. (Wat. Code, § 10504.)4 That is the predicate for the lead opinion’s claim that term No. 91 violates El Dorado’s priority rights because it has not been placed in the permits of junior appropriators within the Delta so as to require them to share in meeting water quality objectives in the Delta. I disagree.
The priority doctrine does not apply. It involves the resolution of conflicting claims to appropriate the same water. (Civ. Code, § 1414.) However, none of the junior appropriators appeared in the proceeding below, the Board did not adjudicate claims to water involving them, it is speculative whether any of them would benefit by the use of water bypassed by El Dorado pursuant to term No. 91 and some are in basins that are not downstream of El Dorado and could not use water bypassed by El Dorado pursuant to the condition.
The lead opinion perceives a “fundamental principleQ” in the priority doctrine from which it fashions a common law rule requiring that appropriators share in providing water to meet the water quality objectives of the Delta including the prevention of saltwater intrusion. (Lead opn. ante, at p. 943.) There is no such common law rule. Under the common law, the priority doctrine does not extend to the prevention of saltwater intrusion in the Delta. (Antioch v. Williams Irrigation Dist. (1922) 188 Cal. 451, 465 [205 P. 688].)
The Board’s authority to prevent saltwater intrusion and protect water quality in the Delta does not derive from the priority doctrine. It derives from the quasi-legislative authority delegated to the Board by the Porter-Cologne Water Quality Control Act (Porter-Cologne Act; § 13000 et seq.). (See United *981States v. Board, supra, 182 Cal.App.3d 82.) The authority is implemented by the Board’s adoption of a water quality control plan (§§ 13140-13147) and is enforced by the placement of conditions in the permits of those who appropriate water that otherwise would flow through the Delta (§ 1258; see also § 10504). In adopting a water quality control plan the Board is directed to “consider ... all competing demands for water” in determining what is a reasonable level of water quality protection for the Delta. (United States v. Board, supra, 182 Cal.App.3d at p. 118; see § 13000.)
The Board sought to implement the Porter-Cologne Act by the adoption of a Water Quality Control Plan for the Sacramento-San Joaquin Delta and Suisun Marsh (Delta Plan). However, the Delta Plan does not encompass all competing demands for water. As pertinent here it does not apply to appropriators upstream of the projects and hence does not apply to El Dorado.5 (United States v. Board, supra, 182 Cal.App.3d at p. 118.)
Although I agree with the policy implicit in the lead opinion’s priority doctrine, the policy cannot be derived from the priority doctrine. The Board lacks the statutory authority to place a term No. 91 condition in the El Dorado permit until it exercises its quasi-legislative authority to extend the Delta Plan to appropriators upstream of the projects, as required by United States v. Board, supra, 182 Cal.App.3d 82. It cannot independently impose such a condition under its general authority to establish the beneficial uses of water for the Delta. (§ 1253.)
I
The Priority Doctrine
The lead opinion is premised on the claim that El Dorado’s superior 1927 priority date precludes the Board from imposing term No. 91 on permits to appropriate water from the American River when it has not imposed the term on appropriators in the Delta with a junior priority date.6 The priority doctrine does not support the claim.
The priority doctrine simply means the first in time to appropriate water is the first in right. (Civ. Code, § 1414.) Although a water right is the right to the reasonable use of water for a beneficial purpose (§ 1253), the priority doctrine presupposes but does not include the reasonable use of water; the *982water rights stand in the same relation to the water to be taken and differ only in time of acquisition. “[W]hen a conflict arises between two appropriators of water, and their rights are otherwise equal, the prior appropriator will prevail so far as the conflict extends.” (San Bernardino v. Riverside (1921) 186 Cal. 7, 28 [198 P. 784].)
The authorities cited by the lead opinion provide no support for the opinion. They involve disputes involving conflicting appropriations of the same water. (See Meridian, Ltd. v. San Francisco (1939) 13 Cal.2d 424, 429 [90 P.2d 537] [contest between “rights of the city [to] water of Tuolumne River . . . and the rights of ... a riparian owner and appropriator of water downstream from the works of the city”]; City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1224, 1234 [99 Cal.Rptr.2d 294, 5 P.3d 853] [claim that “groundwater production” of “upstream water producers . . . was adversely impacting plaintiffs’ water supply”]; United States v. Board, supra, 182 Cal.App.3d at p. 101 [“[t]he appropriation doctrine confers upon one who actually diverts and uses water [that] is surplus to that used by riparians or earlier appropriators”]; Hutchins: The Cal. Law of Water Rights (1956) p. 131.) The priority doctrine is set forth in Civil Code section 1414 (“As between appropriators, the one first in time is the first in right.”).7
The priority doctrine does not apply in this case. As noted, none of the junior appropriators appeared in the proceeding below, the Board did not adjudicate claims to water involving them, it is speculative whether any of them would benefit by the use of water bypassed by El Dorado pursuant to term No. 91. The lead opinion wholly departs from analogy to the priority doctrine when it includes among the junior appropriators some that are not in waterways below Folsom Dam and could not intercept water bypassed by El Dorado for use in the Delta.8
The policy of the proportionate sharing of water to achieve water quality objectives in the Delta, including the prevention of saltwater intrusion, does not implicate a conflict in the priority of appropriative rights. It involves the water quality objectives set forth in the Delta Plan the Board adopted to implement the Porter-Cologne Act. Because the Delta Plan does not apply to El Dorado, the Board lacks the authority to enforce the objectives by the insertion of term No. 91 in the El Dorado permit.
*983As noted, the common law of water rights did not extend to the prevention of saltwater intrusion in the Delta occasioned by the failure of upstream appropriators to provide sufficient flows. (Antioch v. Williams Irrigation Dist., supra, 188 Cal. at p. 460 [“Nothing has been placed in the stream above . . . that in the least affects the purity of the water flowing therein.”]; see also Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1270 [54 Cal.Rptr.2d 340] [“[The u]se of upstream water to wash out salts downstream is an unreasonable use of water.”]; United States v. Board, supra, 182 Cal.App.3d at p. 117.)
Lastly, if the Board were to include term No. 91 in the permits of all the affected junior appropriators as well as El Dorado, the result ultimately desired by the lead opinion, none would prevail over the other but all would proportionally contribute water to the Delta to prevent saltwater intrusion and protect fish and wildlife.
II
The Porter-Cologne Act and the Beneficial Use Doctrine
The lead opinion assumes the Board has the quasi-adjudicative authority to enforce the water quality objectives of the Delta Plan notwithstanding that the plan does not apply to El Dorado, but claims the priority doctrine prevails over the objectives even without term No. 91 in the El Dorado permits because the objectives will be met by the release of water from the projects. The opinion is incorrect on both counts.
As noted, there is no common law water right to prevent saltwater intrusion in the Delta and saltwater intrusion is inextricably linked to the quality of water available for domestic consumption and agricultural use. The Board’s authority to prevent saltwater intrusion in the Delta derives solely from the exercise of its statutory authority under the Porter-Cologne Act. The Board has no independent authority to impose term No. 91 solely under its quasi-adjudicative authority to impose conditions on permits. (§ 1253.)
“[I]n carrying out its water quality planning function [under the Porter-Cologne Act], the Board possesses broad powers and responsibilities in setting water quality standards.” (United States v. Board, supra, 182 Cal.App.3d at p. 110.) “[I]n carrying out activities which may affect water quality, [the Board] shall comply with water quality control plans approved or adopted by [it] unless otherwise directed or authorized by statute . . . .” (§ 13247.) This is the exclusive means for regulating excess salinity due to tidal water intrusion. (United States v. Board, supra, at pp. 107-111.) “[The Act] unmistakably requires the Board to formulate water quality standards to *984provide salinity control to ‘ensure the reasonable protection of beneficial uses’ (§ 13241)____” {Id. at p. 117.)
The Porter-Cologne Act “establishes a comprehensive statewide program for water quality control administered by nine regional boards and coordinated by the state Board. The regional boards are primarily responsible for formulation and adoption of water quality control plans . . . (§ 13240) . . . [b]ut the Board alone is responsible for setting statewide policy concerning water quality control (§§ 13140-13147).” (United States v. Board, supra, 182 Cal.App.3d at p. 109.) The act establishes a right in the people to the quality of all water. (§ 13000.) It confers on the Board the authority to adopt regulations to carry out the policy. (§ 13140.) “In fulfilling its statutory imperative, the Board is required to ‘establish such water quality objectives ... as in its judgment will ensure the reasonable protection of the beneficial uses ....’” (United States v. Board, supra, at pp. 109-110.) In doing so the act commands the Board to consider all competing demands for water in determining what is a reasonable level of water quality protection for the Delta. (§ 13000.) However, the statutory criteria for establishing water quality objectives do not include water rights. (§ 13241; United States v. Board, supra, at p. 118, fn. 9.)
The Porter-Cologne Act is enforced by the exercise of the Board’s quasi-adjudicative authority to attach “such terms and conditions [to permits] as [the Board] finds are necessary to carry out . . . plans” adopted pursuant to the act. (§ 1258, enacted as part of the Porter-Cologne Act, Stats. 1969, ch. 482, § 12, p. 1048, operative Jan. 1, 1970.)9 The act also may be enforced incident to the assignment of a 1927 priority date by virtue of section 10504, which provides that the assignment shall “not . . . conflict. . . water quality objectives established pursuant to law.”10
The application of the Porter-Cologne Act to the Delta was extensively discussed in United States v. Board, supra, 182 Cal.App.3d 82, a case *985the lead opinion does not discuss for its application to this case.11 It is analogous to this case. The case ruled on the validity of conditions inserted by the Board in permits bearing a 1927 priority date for the appropriation of water by the projects, requiring them to release water to satisfy the water quality objectives the Board established for the Delta. (United States v. Board, supra, 182 Cal.App.3d at p. 97.)12
Unlike this case, the Board in United States v. Board employed its quasi-adjudicative authority to enforce the terms of the Delta Plan, which set new water quality objectives for the Delta. At the same time the Board “implemented those objectives in [its] Decision by modifying the projects’ appropriation permits to compel the projects to maintain the established water quality standards.” (United States v. Board, supra, 182 Cal.App.3d at p. 112.)
“In performing its dual role [quasi-legislative in establishing water quality standards and quasi-judicial in enforcing them], including development of water quality objectives, the Board is directed to consider not only the availability of unappropriated water (§ 174) but also all competing demands for water in determining what is a reasonable level of water quality protection (§ 13000). In addition, the Board must consider ‘past, present, and probable future beneficial uses of water’ (§ 13241, subd. (a)) as well as ‘[w]ater quality conditions that could reasonably be achieved through the coordinated control of all factors which affect water quality in the area’ (§ 13241, subd. (c), italics added. Unfortunately, the Board neglected to do so.” (United States v. Board, supra, 182 Cal.App.3d at p. 118.)
United States v. Board said: “In formulating the without project standards, the Board considered only the water use of the Delta parties . . . and the needs of the customers served by the projects . ... No attention was given to water use by the upstream users.” (United States v. Board, supra, 182 Cal.App.3d at p. 118, italics added.) That violated the Porter-Cologne Act *986because the Board must “consider not only the availability of unappropriated water (§ 174) but also all competing demands for water in determining what is a reasonable level of water quality protection (§ 13000).” (182 Cal.App.3d at p. 118.) The court emphasized that the failure was “the Board’s failure to consider upstream users” in its project only analysis. (Ibid., italics added.) “In short, the Board compromised its important water quality role by defining its scope too narrowly in terms of enforceable water rights.” (Id., at p. 120.)
The court concluded: “[T]he Board failed to carry out properly its water quality planning obligations. Because the water quality objectives set at without project level of protection were not established in the manner required by law, they are found to be invalid. However, since remand to the Board could serve no useful purpose in light of the Board’s announced intention to conduct hearings during 1986 to establish new and revised standards, we reverse the trial court’s judgment which commands the Board to reconsider the Water Quality Control Plan. Of course, we would expect the renewed proceedings to be conducted in light of the principles and views expressed in this opinion.” (United States v Board, supra, 182 Cal.App.3d, at p. 120; see also id. at pp. 123-126, italics added, fn. omitted.)
United States v. Board was at pains to distinguish between the Board’s quasi-legislative authority to establish a plan for the Delta and its quasi-adjudicative enforcement powers to implement the plan by conditions attached to the permits of appropriators subject to the Act.
The Board attempted to enforce the water quality objectives set forth in the Delta Plan on El Dorado without the plan applying to El Dorado. That it cannot do. The Board’s authority to place term No. 91 in the El Dorado permit is limited to its enforcement of the Delta Plan.
The lead opinion argues that, notwithstanding the Board’s general authority to implement the water quality objectives of the Delta Plan (§ 1253), the priority doctrine prevails because “[i]f El Dorado is allowed to divert when the projects are releasing stored water ... , the [water quality] objectives will not go unmet. Instead, the projects will simply have to release more stored water to meet the objectives, because the Board has imposed the ultimate obligation for meeting the objectives on the projects (albeit on an interim basis).” (Lead opn., ante, at p. 967.) This too is incorrect.
As explained in United States v. Board, the failure to include upstream appropriators in the Water Quality Control Plan for the Delta reduces the amount of water available to meet the water quality objectives of the Delta because it is based upon “the unjustified premise that upstream users retained unlimited access to upstream waters, while the projects and Delta parties *987were entitled only to share the remaining water flows.” (United States v. Board, supra, 182 Cal.App.3d at p. 118.)13
Conclusion
I would affirm the judgment of the trial court for the reasons set forth above.
Although the contractors have contractual rights with the Bureau, they have no water rights of their own. (See United States v. State Water Resources Control Bd. (1986) 182 Cal.App.3d 82, 145 [227 Cal.Rptr. 161] (United States v. Board).)
The Department appears as a real party in interest and respondent in El Dorado’s appeal of an interlocutory order that joined Westlands, State Water Contractors and the Bureau as necessary parties. The Department also appears as amicus curiae in support of the Board. The Bureau asserted its sovereign right not to appear.
Apparently for these reasons there is no party on appeal that has asserted the 1927 priority water rights of the state and federal governments and no such claim is advanced or considered in the lead opinion. The lead opinion suggests that the real conflict is between El Dorado and the projects for it says that “[i]f El Dorado is allowed to divert ... the projects will simply have to release more stored water to meet the [water quality] objectives . . . .” (Lead opn., ante, at p. 967.) That is incorrect for reasons I advance in the text.
A reference to a section is to the Water Code unless otherwise designated.
El Dorado has rights to appropriate water from the South Fork of the American River above Folsom Dam, one of the projects.
Although the Board has adopted a policy for the insertion of term No. 91 in permits to appropriate water with priority dates after 1978, it has not done so for permits preceding that date.
Civil Code section 1414, enacted in 1872, cited by Hutchins, is unchanged since that date and still sets forth the prior appropriation doctrine. (See State of Arizona v. State of California (1936) 298 U.S. 558 [80 L.Ed. 1331, 56 S.Ct. 848]; San Bernardino v. Riverside, supra, 186 Cal. 7.)
There are many tributaries that contribute water to the Delta. There is nothing in the record that locates the junior appropriators on any particular tributary and it is likely that some are on a tributary not served by Folsom Dam.
Section 1258 reads in pertinent part: “In acting upon applications to appropriate water, the board shall consider water quality control plans which have been established pursuant to [the Porter-Cologne Act], and may subject such appropriations to such terms and conditions as it finds are necessary to carry out such plans.”
Section 10504 was enacted in 1967, as part of the predecessor to the Porter-Cologne Act. (Stats. 1967, ch. 284, § 136.2, p. 1447.) Shortly thereafter the Porter-Cologne Act was enacted (Stats. 1969, ch. 482, § 1 et seq., p. 1046). The Porter-Cologne Act “establishes the] law” pursuant to which a condition requiring the release of water to maintain the water quality in the Delta may be attached to an assignment of 1927 priority rights. That is, the Board may condition a 1927 assignment by limiting the amount appropriated in order to fulfill a water quality objective established under the quasi-legislative authority of the Board (§ 13140) granted it by the Porter-Cologne Act.
The lead opinion does not discuss the holding of United States v. Board, let alone its application to this case. It fails to acknowledge that the Board has been under a judicial mandate for two decades to extend the Delta Plan to appropriators upstream of the projects but has failed to do so. (See United States v. Board, supra, 182 Cal.App.3d at pp. 120, 123-126; cf. State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674 [39 Cal.Rptr.3d 189].) As a backhanded reference to the problem, the lead opinion says that “[t]he Board is under no obligation to require the projects to bear all of the burden of meeting water quality objectives in the Delta indefinitely.” (Lead opn., ante, at p. 969.)
The court said: “In 1927, the California Legislature . . . authorized the [Department’s] predecessor agency to file applications to appropriate water for use in the contemplated CVP. (§§ 10500-10506.) Upon the federal government’s assumption of the project, the [Department] assigned its applications to the U.S. Bureau. . . . [T]he principal permits were issued in 1961 (Decision 990). [¶] The [Department also] obtained appropriative rights for operation of the SWP through the permit process, the permits being issued by the Board in 1967 (Decisions 1275 and 1291).” (United States v. Board, supra, 182 Cal.App.3d at p. 106.)
The court gave an example. “The effect of the Board’s failure to consider upstream users may be illustrated: If the upstream users left enough water in the stream flow to provide salinity control 300 days a year, then under the Board’s approach the objectives would be to maintain that same level of water quality. In contrast, if upstream diversions and pollution effectively reduced salinity control in the Delta to only 200 days a year, the without project standards would maintain that lower level of water quality. We believe such an approach is legally unsupportable.” (United States v. Board, supra, 182 Cal.App.3d at p. 118.)