Abstract: The Institutes of Justinian of 535 A.D. embraced the idea of water as a public resource, above private ownership, ideals embedded in the U.S. Constitution and U.S. Common Law[1] known as the Public Trust Doctrine. Water rights in California conflict with this doctrine, devaluing common, in-stream uses for private benefit. In an era of increasing dilemmas of water quality and quantity, the doctrine has the potential to allow the allocation and management of water to take place in the highest public interest, and to be reflective of changing public needs. The State of California needs to clarify the roles of the doctrine and water rights in water management to ensure that water is equitably apportioned among agricultural, domestic, industrial, and in-stream (environmental) uses.
Randolph B.
Flay
ESPM 200A
December 1st,
1999
Table of Contents
Balancing Common and
Individual Water Use: The Conflict Between the Public Trust Doctrine and Water
Rights in California....................................................................................................... 1
Table of Contents....................................................................................................................... 2
I. Introduction............................................................................................................................. 3
II. Background............................................................................................................................. 4
A. The Landscape of California................................................................................................................................................... 4
B. The Water Balance.................................................................................................................................................................... 5
C. Surface Water in
California.................................................................................................................................................... 6
D. Groundwater in California...................................................................................................................................................... 7
III. The Dilemma of Ground & Surface Waters...................................................................... 8
IV. The Legal History
of Water............................................................................................... 12
A. The Origins of Water
Law..................................................................................................................................................... 12
B. The Public Trust Doctrine Comes of Age in
California.................................................................................................. 14
C. Modern Water Rights............................................................................................................................................................ 16
V. The Promise of the Public Trust Doctrine..................................................................... 19
A. Mono Lake Case...................................................................................................................................................................... 19
B. Bear Creek and Putah Creek Cases................................................................................................................................... 20
C. Hawaii Case.............................................................................................................................................................................. 20
VI. Proposed Solutions........................................................................................................... 21
A. Discussion................................................................................................................................................................................ 21
B. Key Findings............................................................................................................................................................................. 22
C. Recommendations.................................................................................................................................................................... 23
D. Final Remarks......................................................................................................................................................................... 24
VI. References............................................................................................................................ 25
I.
Introduction
As early as the 6th century, Roman society understood the value of water as a resource common to all people, a resource above exclusive private ownership. The U.S. Constitution and the California Constitution embody many of these ideals. Regardless, in California a highly privatized system of water rights has developed, devaluing common, in-stream uses. Maintaining sufficient in-stream flows is vital for supplying water for fish, wildlife, and natural vegetative cover; and for diluting concentrations of contaminants. The state has over-allocated its water resources allowing many watercourses, such as the San Joaquin River, to run dry in places. Currently, the CALFED Bay-Delta Program[2], the Central Valley Project Improvement Act (CVPIA)[3], and other projects mark a change in attitude about water resources management in the state. There is a realization that maintaining in-stream flows is critical to supporting ecosystems, maintaining water of reasonable quality, and complying with state and federal laws.
However, the privatized system of water rights in California poses a problem. These property rights that have been granted by State Water Resources Control Board (SWRCB) and its predecessor agencies are real property rights similar to rights of owning land. For the State to reallocate or amend these permits would in essence be a taking[4], requiring just compensation by the State to those who lose those their rights to the water. In this setting, allocating a mere 800,000 acre-feet of Central Valley Project (CVP) water for in-stream uses in the CVPIA has been a difficult fight against water rights holders. In light of this situation, a common law principle known as the Public Trust Doctrine possesses great potential for valuing in-stream uses of the water and providing the SWRCB with the legal tools to reallocate water by immunizing them against takings-based lawsuits from water rights holders.
California Constitution Article X, Section 5 states that the State of California owns all the water in California. I believe this fact in combination with the Public Trust Doctrine, mandate the State to manage water resources in the highest public interest and give the State the tools to do so. California water rights have developed contrary and subsequent to these principles, jeopardizing equitable water apportionment and creating a conflicting water rights system. Therefore I recommend adopting changes to the California Water Code to clarify water rights and allocation, and moving California toward a full permit-based system of temporary water rights. This will help insure that water is equitably distributed among agricultural, domestic, industrial, and in-stream uses.
II. Background
A. The Landscape of California
Historically water was more the shaper of its own destiny, but the arrival of humans into the natural landscape, especially European settlers, changed the natural conditions. Currently the surface waters and groundwaters of California are confined to concrete channels, held behind dams, pumped out of the ground in some areas and artificially recharged in others. Droughts, declining water quality, ecological impacts, salt buildup, and many other water-related issues raise serious questions about the future of California. Up until the 1990's with the arrival of CALFED and the CVPIA, solutions to these problems largely consisted of building more dams, conveyance facilities, or drainage structures. However, these solutions neglected the natural flora and fauna, and were largely ineffectual in bringing long-term remedy to the situation (Letey 1986). This has prompted the California Department of Water Resources (DWR), the U.S. Bureau of Reclamation (Bureau), and the courts to seek alternative solutions. Legal solutions that address the dilemma of water rights, water allocation, and in-stream flows show great promise in balancing agricultural, domestic, industrial, and environmental uses. In particular, a centuries old facet of Roman law known as the Public Trust Doctrine shows great potential for fulfilling this needed role in the state and empowering the State to take action on it.
B. The Water Balance
Innumerable feats of engineering have shaped the waterscape of California with the major goals of altering its spatial and temporal characteristics. These characteristics are that the majority of precipitation falls in the winter, in contradiction to demand; and that the majority of the precipitation falls in the northern half of the state, also in contradiction to demand. Demand is attributable to the concentration of agriculture and human population in the south. Additionally, both agricultural and urban usage patterns require more water in the summer. In California, precipitation accounts for the bulk of water entering the state at about 200 million acre-feet (MAF) or 65,000,000,000,000 gallons per year (Department of Water Resources 1998). From the total runoff, about 21.9 MAF is captured into conveyance systems and other structures for use, in addition to the 5.2 MAF of Colorado River water that is also used. Groundwater makes a large contribution to the water supply, adding 15.1 MAF per year. A total of 38 MAF is utilized: 31 MAF for agriculture, 6 MAF for municipal and industrial, and 1 MAF for wildlife and recreation. Of the original 42.4 MAF, 22.1 MAF of the applied irrigation waters evaporate after application, 7.7 MAF end up as surface return flows from agriculture (2.6 from municipal and industrial uses), and 6.8 MAF percolates into deep aquifers.
C. Surface Water in California
In California rivers flow 211,513 miles and
lakes cover 1,672,684 acres (USEPA
1996). As noted
earlier, there are a diverse range of human activities that influence water in
California, such as mining, navigation, reclamation, flood control, municipal
water supply, irrigation agriculture, and hydropower. These activities are supported by an array of extraction systems,
reservoirs, conveyance facilities, treatment plants, and distribution networks
that bring source water to consumers. Additionally, over 1400 major dams and
reservoirs generate power, store water, and provide flood control for the
state. Local, state, and federal
agencies developed these projects with interests ranging from municipal water
supply and irrigation, to flood control and energy creation (See Figure 1 for a
display of the major water projects in the state[5]). The vast majority of these dams and major
conveyance facilities were constructed in a short time period from about 1900
until about 1970.
D. Groundwater in California
Although groundwater may lack the grandiose
structures of surface water development, it supplies 36% of California's
developed water in normal years, and supplies 60% in dry years (Department of Water Resources 1998). Groundwater
use is most intensive for urban consumption along the coast and for irrigation
in the Central Valley. Most
exploitation occurs from unconfined, "water-table" aquifers (See
Figure 2 for a basic groundwater diagram[6]). These aquifers are simply areas were water
from the surface has percolated down to occupy pores between sediments and
rocks. California overdrafts the
groundwater supply by 2 MAF each year, most of which occurs in the San Joaquin
Valley and Tulare Basin. Despite groundwater's
importance to California, there is no comprehensive system for managing the
resource, although reports from the U.S. Geological Survey (USGS) and other
agencies show declining quality and quantity (Domagalski
1992).
III. The Dilemma of Ground & Surface Waters
Water problems are typically classified as problems of quantity and quality. There is a limited quantity of water in California to meet the agricultural demands for water to irrigate and to supply dense, growing urban centers. Recently, environmental groups, angling organizations, the federal government, and other associations have pressured to leave more water in the rivers to support natural ecosystems. Competing agricultural, domestic, industrial, and environmental interests all seek a portion of the water.
Article X, Section 5 of the California Constitution states, "The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the State, in the manner to be prescribed by law (State of California 1999)." This essentially means that the State owns all the water and thereby determines what water is used for. Rights to water use, riparian, appropriation, or any other are subject to the decision of the State. This responsibility is administered by the SWRCB with powers defined in Sections 174-188.5 of California Water Code (State of California 1999). Decisions about the allocation of water rights are based on subjective criteria, such as "beneficial and reasonable use" as outlined in the California Constitution. The Water Code goes further to say that "the use of water for domestic purposes is the highest use of water and that the next highest use is for irrigation." Water right permits issued by the SWRCB illustrate the magnitude of the water rights quandary. In examining the allotment of Colorado River water to the Imperial Irrigation District (IID), SWRCB permit numbers[7] 007643 through 007649 grant rights to use a maximum of 61,000 cubic feet per second (44 MAF per year) from January through December for power generation and domestic use. This is about 8 times the flow of the Colorado River. Although the SWRCB likely made assumptions that this would be maximum use and that IID would likely not use the full allotment, it still presents a very hefty legal dilemma for the State to modify these and many other permits.
In addition to the problem of water scarcity and related issues of water rights, supply of underground waters is also manifest in the problem of land subsidence[8]. In the 1920's, the deep-well turbine was developed enabling high rates of extraction from depths of up to 600 meters. Farmers thoroughly employed this technique to supply irrigation water in the San Joaquin Valley and by the 1930's extraction exceeded recharge by several fold. By the 1970's the land on the west side of the Valley subsided by as much as 8 meters (Narasimhan 1996). The lowered water table also raised the cost of extraction substantially. Although importation of water through the Delta-Mendota Canal of the CVP in 1951 helped to restore the water tables, about 90% of the subsidence constituted a loss of groundwater storage capacity that can never be regained (Narasimhan 1996).
Importing water for irrigation has also caused a water quality problem. Large amounts of water are used to irrigate lands in the Central Valley, much of which quickly evaporates. Although the waters evaporate, salts and trace elements, such as selenium and boron, are left behind. As the salts buildup in the root zone, plants have to expend more and more energy to create an osmotic potential to draw water into their roots. In order to reduce the stress on plants, subsurface tile drains were installed to maintain the water table at about 2 meters in depth, reducing water-logging and salt accumulation in the root zone.
In 1971, the 134 km long San Luis Drain was terminated at a series of shallow regulating ponds, later known as Kesterson Reservoir, to collect waters from many of these subsurface drains (original plans to terminate at the San Francisco Bay were amended because of insufficient funds). The Bureau constructed this reservoir which was later incorporated into the national wetlands system. Initially Kesterson received some fresh water flows, but by 1982 inflow consisted solely of saline water from subsurface drains, high in trace elements and pesticides. As early as 1981, ranchers in the vicinity noticed livestock abnormalities and death (Letey 1986). They questioned the Bureau's operating practices and a rancher, James Claus, filed suit and a complaint with the SWRCB (Letey 1986). In 1983, a large die-off of birds and later discovered reproductive failure further alerted Fish and Wildlife Service officials to the toxicity of the reservoir.
On February 5th, 1985, after a series of evidentiary hearings, the SWRCB ordered the Bureau to revise operating procedures within 6 months or close Kesterson (Letey 1986). At the federal level, the House Subcommittee on Water and Power Resources met in Los Baños to investigate Kesterson's toxicity and the Bureau's involvement on March 15th, 1985 (Letey 1986). During the meeting, the California representative of the Department of the Interior, Carol Hallet, announced that the Bureau was going to shut down the reservoir and stop water deliveries to 42,000 acres of farmland in the Westland Water District. This alarmed farmers who depended on the water for irrigation and later the Bureau decided to continue deliveries, phase out Kesterson, and plug all the drains; a process that was completed in May of 1986. No final solution to agricultural drainage exists today and the majority of drainage water in the San Joaquin Valley, approximately 75,000 acre-feet, is at some point discharged into the river (aside from the few evaporation ponds in operation in the region) (Narasimhan 1996).
Pesticides are also contributing to the sharp decline in the quality of surface and groundwaters (USEPA 1996). In 1997, 204,779,717 pounds of pesticides were applied in California, over 95% for agricultural crops (Department of Pesticide Regulation 1999). This figure was 11,882,252 pounds in San Joaquin County alone. A USGS report noted that "The highest concentrations of organochlorine pesticides, such as DDT and its metabolites, were measured in bed sediments of the western San Joaquin Valley. According to published sources, DDT metabolite concentrations in bed sediments of the San Joaquin River are among the highest of major river systems of the United States (Domagalski 1992)." Many of these pesticides are later transported in suspended sediments to San Francisco Bay and estuary where the impact on the ecosystem can be rather severe (Bergamaschi 1997).
It goes without saying that issues of supply and quality stem largely from agricultural use of water, raising the question, Why not change agriculture? In past times the public good benefits of agriculture were seen to outweigh any detrimental side-effects. Now we are seeing that agriculture is harming society in a time of surplus food production. Additionally, agriculture is becoming a smaller portion of the State's economy. Current water rights allocate about 32 MAF for agriculture, 6 MAF for domestic and industrial uses, and 27 MAF for wild and scenic rivers. At the same time, agriculture is 2.1% of California's Gross State Product and about 3% of the labor force (Office of Economic Research 1998). Is this an equitable apportionment of water in the public interest? In the end, to solve the water crisis will require resolving the position of agriculture in California. The purpose of this paper is not to argue that water rights allocations for irrigation are at the root of the water dilemma, only that the State ought to have the tools to modify water allocations given such an event. The present day water issue in California requires that water allocation and use be balanced among agricultural, domestic, industrial, and in-stream uses.
IV. The Legal History of Water
A. The Origins of Water Law
The first notion of water law arguably stemmed from the Roman emperor Justinian (483-565 A.D.) whose writings known as "The Institutes" (535 A.D.) formed the basis of English common law and later U.S. common law (Thatcher 1907). The language used with respect to water is strikingly similar to that of the present-day U.S. Book 2, Division I contains several interesting codes:
1. By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitationes [inhabitants], monuments, and buildings which are not, like the sea, subject only to the law of nations. 2. All rivers and ports are public; hence the right of fishing in a port, or in rivers, is common to all men. 3. The seashore extends as far as the greatest winter flood runs up. 4. The public use of the banks of a river is part of the law of nations, just as is that of the river itself. All persons, therefore, are as much at liberty to bring their vessels to the bank, to fasten ropes to the trees growing there, and to place any part of their cargo there, as to navigate the river itself But the banks of a river are the property of those whose land they adjoin; and consequently the trees growing on them are also the property of the same persons.
Just as England's common law stemmed from the Institutes of Justinian, the U.S. adopted the common law of England upon independence. Article 1, Section 8 of the Constitution states "The Congress shall have power . . .To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." This "commerce clause" gave Congress the control of navigable waterways and tidal areas as being necessary for commerce. This has been further interpreted in Illinois Cent. R. Co. V. State Of Illinois (1892) 146 U.S. 387, tried before the U.S. Supreme Court (Supreme Court of the United States 1892). This was the defining case for what is known as the Public Trust Doctrine, one of the more important doctrines defining the trust responsibilities of the State to manage and protect the public resources of the U.S. which the government holds in common for the people. The Public Trust Doctrine plays a critical role in water law in the U.S.
In the case, Illinois Central Railroad filed suit against the State of Illinois to "obtain a judicial determination of the title of certain lands on the east or lake front of the city of Chicago." Reclamation activities and the construction of wharves by Illinois Central Railroad questioned the use of these lands as being in the public interest. The concept of the public trust is clarified by the statement of Chief Justice Taney in Martin v. Waddell, "When the Revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government." The People placed these waters in the trust of Congress in the Constitution. Upon admission to the Union, states were delegated these trust responsibilities as Illinois in this case in 1818. Based on those ideals, the Supreme Court held that the State of Illinois had erred in permitting the construction of wharves that would impair navigation for a purely private undertaking.
A portion of this power was later delegated to the
Army in Section 9 of the Rivers and Harbors Act of 1899, "That it shall
not be lawful to construct or commence the construction of any bridge, dam,
dike, or causeway over or in any port, roadstead, haven, harbor, canal,
navigable river, or other navigable water of the U.S. until the consent of
Congress to the building of such structures shall have been obtained and until
the plans for the same shall have been submitted to and approved by the Chief
of Engineers and by the Secretary of War . . . (United States 1899)" This
Act, later codified in Title 33 of the U.S. Code, stated that navigation, being
necessary for commerce, could not be possessed by individual states and thus
navigable waters were to be held "in trust" by Congress.
B. The Public Trust Doctrine Comes of Age in California
What does the Public Trust Doctrine mean for California water rights? Appropriation, riparian, overlying, and other forms of water rights developed in California subsequent to the Public Trust Doctrine. Although water rights in California are perceived as real property rights a way to view the Public Trust Doctrine is as an easement on those rights that took effect the moment California entered the Union in October, 1850 (State Water Resources Control Board 1990). It is an easement that says you have legal title as an owner to use that water as long as you do so in the public interest. Defining what the public trust and public interest constitute and where they apply has been an issue of debate.
What is "in the public interest"? Using water in the public interest originally only implied putting the water to some use. In 1928, the California Constitutional Amendment in Article X, Section 2 added "reasonable and beneficial use" as a stipulation to water use in the state. A related codification helping us to define the public interest is sections 1243 and 1702 of the Fish and Game Code of the State of California (1938). Additionally the California Water Code states that domestic use of water is the highest use, and use for irrigation is the next highest use.
Where does the Public Trust Doctrine apply? As mentioned above, the Public Trust Doctrine originally only applied to navigable waters. This notion has been expanded to encompass public lands and other publicly held properties. In California, the Constitution and the Water Code specify that the State owns all water within the boundaries of California, above and below ground. This bestows responsibilities on the State as trustee for the people of California. Directly applied, one might say the SWRCB has a duty to allocate water in public interest of California. Additionally, trust responsibilities have arisen in the Fish & Game Code such as in section 711.7 (a): "The fish and wildlife resources are held in trust for the people of the state by and through the department".
The aforementioned idea of an easement is important, since generally once a water right has been established, there is very little the State can do to modify it or remove it. Any modification of this right beyond situations where the right-holder has demonstrated non-use of appropriation rights, unreasonable use, or non-beneficial use is a taking as defined by the 5th Amendment of the U.S. Constitution. This seems inconsistent with the California Constitution which says that all water within the boundaries of California belongs to the State. It would have been better to state that all waters without right holders belong to the State.
Given that modification of water allocation would be a taking by the State of property held by an individual or corporation, it requires just compensation by the State. Additionally, it seems that if California wanted to drastically reallocate water among current holders of water rights, they would have to invoke the police powers of Eminent Domain[9] to do so. The system is ambiguous and is made more complex given that right holders often allocate water to contractors or sell via a water transfer to other users. My belief, and one which the Public Trust Doctrine supports, is that if water is owned by the State, then the State should be able to reallocate water to serve the greatest public interest. Unfortunately this is not the situation. The current situation favors private rights over common property rights and in-stream uses, leading to a limited in-stream flow and contributing to many predicaments of supply and quality.
C. Modern Water Rights
Water law has an interesting history, particularly in California. Until the signing of the Treaty of Guadalupe Hidalgo in 1848, present-day California was under Mexican law (Strauss 1956). Riparian rights—the right of an owner of land adjacent to a body of water to use that water—largely dominated. However, given the vast uninhabited areas, the Mexican government granted water on the public domain for use on the agricultural settlements of pueblos. Thus, these settlements were granted Pueblo Rights to use water from adjacent public lands as necessary. These were the only vested water rights[10] carried over to the U.S. upon signing the treaty.
With the discovery of gold and the transience of the miners, appropriation water rights grew in importance. Miners rarely held title to the land and required large volumes of water for hydraulic mining in which cannons of water were targeted at soft alluvial deposits to create a slurry that was later sifted to pan out gold. Additionally, ranchers and other water users on the public domain also needed a way of obtaining water rights. Appropriation rights set up a system by which use of water denoted ownership, regardless of land ownership. Time became the most important factor in this rights process leading to the phrase: "First in time, first in right."
In 1850 California was admitted to the Union and by statute adopted the common law of England where consistent with the U.S. Constitution. The common law of England included the doctrine of riparian rights. The State's ownership of water is declared in Article X, Section 5 of the California Constitution: "The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regulation and control of the State, in the manner to be prescribed by law." Three years later, California's courts recognized the rights of appropriated water on public land. This was followed in 1872 by a state statute identifying appropriations of water so long as record was made of the diversion or taking possession of the water with the county recorder (Strauss 1956). The U.S. recognized appropriation rights by Act in 1866 and riparian rights in 1870.
The rising dominance of appropriation rights was checked in 1886 in the California Supreme Court decision of Lux v. Haggin. The court held that riparian rights are automatically attached to riparian land when it becomes private property. The case provided an extensive analysis of riparian rights and related public trust issues, holding that "upon the admission of California to the Union, it became vested with the rights, sovereignty, and jurisdiction in and over navigable waters, and the soils under them, which were possessed by the original states after the adoption of the Constitution of the United States; that the United States was the owner of all non-navigable streams on the public lands of the United States within the boundaries of California, and of their banks and beds; and that unless reserved, a grant of public land of the United States carried with it the common law right to a non-navigable stream (Strauss 1956)."
Later, the Supreme Court of California in Katz v. Walkinshaw (1903) 141 Cal. 116 applied the riparian doctrine to underground waters. The decision held that overlying owners had "equal and correlative rights" in the use of water for overlying lands and that use by a owner for overlying lands is preeminent to use for non-overlying lands.
In 1913 the Legislature of California passed the Water Commission Act, creating the State Water Commission and codifying procedures for the appropriation of water. Little else changed until the case of Herminghaus v. Southern California Edison Company (1926). This case held that a riparian owner was entitled to the full flow of a stream without regard to reasonableness against appropriators, finding the doctrine of reasonable use only applied between riparian owners. This holding induced the Legislature of California to pass an amendment to the Constitution of California in 1928, limiting the right of riparian owners to water reasonably acquired for beneficial use.
CA Supreme Court Ruling City of Los Angles v. City of San Fernando (1975) weakened the utility of the mutual prescription doctrine[11] under which the rights of pumpers in overdrafted basins had been decided on the basis of historical usage by the individual pumpers. It introduced the idea of equitable apportionment[12] which allows the courts flexibility in resolving disputes, granting them the power to set the safe yield for a given basin. Also, owners would likely not be compensated for cutbacks. This idea of equitable apportionment has been effectual only in small confined basins where surface water can be used to replenish water to the safe yield level. However, in areas such as the San Joaquin Valley this is impractical. In 1978 a Governor's Commission to Review Water Rights Law recommended statewide groundwater policy. To this day no such policy exists (Department of Water Resources 1979).
The complexity and ambiguity of water law in California is clear. Resolving the interplay of the Public Trust Doctrine and the water rights system is crucial to efficiently allocating California's water.
V. The Promise of the Public Trust Doctrine
A. Mono Lake Case
Perhaps no greater example of the potential of the Public Trust Doctrine for protecting in-stream uses exists than the Supreme Court of California case of February 17th, 1983: National Audubon Society v. The Superior Court of Alpine County, Respondent[13]; Department of Water and Power of the City of Los Angeles, Real Parties in Interest. In 1940, the Division of Water Resources (predecessor to the SWRCB) had issued permits to divert water from four streams tributary to Mono Lake to the Department of Water and Power (DWP). By 1970, DWP had constructed two diversion tunnels and was taking nearly the entire supply of these streams to supply Los Angeles. As a result, the surface level in Mono Lake dropped nearly 40 feet and the surface area diminished by one-third by the mid-1970's. This concentrated salts in the lake, damaging the aquatic community and higher organisms, such as birds, which depend on it. National Audubon Society filed suit to enjoin the diversions under the theory that Mono Lake and its shores reside in the public trust. The Supreme Court ruled in favor of the National Audubon Society. In the opinion, Justice Broussard wrote: "In our opinion, the core of the public trust doctrine is the state's authority as sovereign to exercise supervision and control over the navigable waters of the state and the lands underlying those waters. This authority applies to Mono Lake and bars DWP or any other party from claiming a vested right to divert waters once it becomes clear that such diversions harm the interests protected by the public trust." He went on to write: "Approval of such a diversion without considering public trust values, however, may result in needless destruction of those values."
B. Bear Creek and Putah Creek Cases
More recently in California, the Public Trust Doctrine was expanded under California Fish & Game Code Section 5937 to include fish and wildlife as a public trust resource. In these cases of 1994 and 1996, suit was filed to increase stream flow below dams on Bear and Putah creeks, as the minimal flows were injurious to fish in the river. The judge ruled in favor of increasing stream flows and ordered dam operators to increase flows 50% in the Putah Creek Case. The judge further held that navigability was not required for the Public Trust Doctrine to apply, and that the Public Trust Doctrine became law upon California's admission to the Union in 1950 and takes priority of all water rights subsequently granted (California Trout 1996).
C. Hawaii Case
The most far-reaching application of the Public Trust Doctrine has taken place in Hawaii, where the State has held that all public natural resources are held in trust for the benefit of the people, including all waters of the state. In Ahuna v. Department of Hawaiian Home Lands, the court ruled that burden of proof rests on the government as trustee to demonstrate that the trust resource has been used in the public interest (Paul 1996). In public trust cases, many courts have held that the burden of proof rests with the entity seeking to modify the trust resource. In the case of the California, this would imply that the SWRCB must prove beyond a reasonable doubt that issuance of a permit to use water is not injurious to the status quo condition of the watercourse. I do not believe that this standard exists in California, but it helps demonstrate the potential application of the Public Trust Doctrine.
These cases importantly display the extension of the Public Trust Doctrine's scope. Originally the Public Trust Doctrine only applied to navigable waterways, for purposes of fishing and commerce. Today the Public Trust Doctrine has been applied fish, wildlife, non-navigable waterways, and, in the case of Hawaii, to all resources under the ownership of the State. The Public Trust Doctrine has further expanded protected uses of the public trust, such as environmental, research, and other uses (Supreme Court of California 1983).
These cases also illustrate how the Public Trust Doctrine has come into conflict with water rights, particularly appropriation rights in California. California has allowed a system of vested usufructuary water rights to develop in conflict with the long-held ideal that water is a common resource. These absolute rights undermine the spirit of the public trust which was to allow for continuous evaluation of what uses of the public trust were in the public interest. In this situation it is critical that the State bring remedy to this conflicting and ambiguous system of water rights in California to ensure that water is put to the highest use and is reflective of the public will.
VI. Proposed Solutions
A. Discussion
In my understanding, when the California Constitution came into effect the State of California acquired legal title to all the waters of the state. With that title came trust responsibilities to the sovereign people of the state. These trust responsibilities require that the State act in such way that the public interest be best served. With respect to water, this manifested itself in the State Water Commission in 1913 and later in the SWRCB, which possess the duty of considering the public interest in granting legal title to use waters of the state. My thought is that the responsibility of the SWRCB is not a singular event but a continuous one, subject to review.
California has changed drastically in the past 100 years and the once agricultural state now finds its economic base in Silicon Valley, not the Central Valley. The demand of urban areas for water is great, yet they must conserve and find alternative sources when agricultural practices that generate a relatively small portion of State's overall revenue spend it freely (74% of the irrigated land in California uses flood irrigation) (Solley 1998). It seems as though some of the 4 MAF of water flowing through the SWP might be better invested in these urban areas. This is further confirmed by the Water Code which reads "the use of water for domestic purposes is the highest use of water and that the next highest use is for irrigation." Why then is agriculture receiving the lion's share of the water? Again, the purpose of this paper is not to argue that water use for irrigation is not in the public interest or "reasonable and beneficial," only that the State ought to have the power to amend allocations in such an event.
I believe the Public Trust Doctrine is the proper balancing test for resolving such issues and that it applies to all waters in the State of California. The Public Trust Doctrine is likely to grow in influence as water not only perceived as a public resource but managed as one.
B. Key Findings
· There exists a serious water quality and quantity predicament in California that will only worsen under a burgeoning population and an extensive agricultural industry.
· The water quandary in California has developed largely from legal and political mismanagement of water rights and water allocation, not from a lack of technical expertise.
· A highly privatized system of vested, usufructuary water rights, such as that in California, impairs the State's ability to balance agricultural, domestic, industrial, and in-stream uses in a climate of changing public will about the most appropriate use of water.
· Solutions to this problem need to balance agricultural, domestic, and industrial use with in-stream flows; noting that increasing in-stream flows would mitigate many water quality problems and help protect natural ecosystems.
· The Public Trust Doctrine is a viable tool for valuing these in-stream uses and for fostering more reasonable apportionment of California's water in the present by allowing adjustment of superfluously issued water rights permits. It also diminishes the liability of the State from parties which believe that that adjustment of water rights permits would constitute an unjust taking.
· The Public Trust Doctrine once only applied to navigable waterways but now applies to fish, wildlife, waters, and, in some instances, all public lands.
· Common resources such as water need to be managed in a flexible way that allows for water use to be reflective of changing public attitudes.
C. Recommendations
· Amend California Water Code to explicitly state: 1) where the Public Trust Doctrine applies, 2) what uses of the public trust are protected, and 3) what powers the SWRCB has to amend water rights permits when the trust is violated. This would reduce the ambiguity that currently exists in water law between the Public Trust Doctrine and water rights. This ambiguity threatens the ability of water users to have sound expectations of current and future water availability.
· Develop a full permit system for water allocation in California, in which all rights to water use are temporary and contractual, such as in Colorado. The water rights system is described as nebulous at best, defunct at worst. Water rights, federal water contracts, state water contracts, and water transfers could be more effectively managed if a uniform permit system was in place. It would also streamline and clarify rights among, riparian, appropriation, and overlying rights holders.
D. Final Remarks
Justice Broussard was
eloquent when he wrote: "Thus, the public trust is more than an
affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state
to protect the people's common heritage of streams, lakes, marshlands and
tidelands, surrendering that right of protection only in rare cases when the
abandonment of that right is consistent with the purposes of the trust (Supreme Court of California 1983)." In
that regard, states such as California that are critically dependent on
effective water management for survival must recognize the long-held
understanding that the common uses of water must be protected.
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