The public trust doctrine requires the state to hold in trust
designated resources for the benefit of the people.
Traditionally, the public trust applied to commerce and fishing
in navigable waters, but its uses were expanded in California in
1971 to include fish, wildlife, habitat and recreation.
In California, public trust was most notably invoked in a
landmark 1983 case involving water use at Mono Lake.
It was clear during the first hearing on the Kern River Tuesday
that the public has a seat at the table as never before.
Tuesday’s hearing was mostly procedural — setting out which
issues would be sorted first and how. Permeating the discussion
at nearly every turn, however, was the public trust doctrine,
which gives the public a right to natural resources, such as a
river with actual water in it.
Water Audit California sued the City of St. Helena this week
over its management of water. The watchdog group says the city
is violating its “public trust” responsibilities relating to
the Napa River and its aquatic habitat. It cites the city’s
policies on groundwater pumping, well permitting, and water
consumption by vineyards and wineries.
Thirty-two years ago, poet Lewis MacAdams, founder of Friends
of the L.A. River, cut a hole in the chain link fence that
blocked our collective access to the Los Angeles River. He was
inspired by a vision of a re-wilded urban waterway brought back
to life for the benefit of the city’s residents and its urban
wildlife. Three years ago, the city of Los Angeles and the U.S.
Army Corps of Engineers took a big step toward that vision…
Moderator Kathleen Schock got an update on how the work is
progressing locally from Gary Serrato, executive director of
the North Kings Groundwater Sustainability Agency, Christina
Beckstead, executive director of Madera County Farm Bureau, and
David Orth with New Current Water and Land.
More than halfway through his term, experts say, the president
has had almost no lasting impact on California’s major
environmental rules despite making broad promises and
appointing former industry officials into top jobs. The reason:
California, a quasi-country with 40 million people and the
world’s fifth-largest economy, has been aggressively passing
its own state laws, filing lawsuits against the federal
government and cutting deals with other states and countries to
go around the Trump White House.
California Attorney General Xavier Becerra and his allies have
filed a lawsuit to stop Federal water users from participating
in the raising of Shasta Dam, a federal dam. … Plain and
simple, this is a lawsuit waged against Central Valley farmers.
Recently-appointed Interior Secretary David Bernhardt has
rescinded a letter of support that Obama-era Interior Secretary
Sally Jewell wrote in 2016. … Matt Cox is with the Klamath
River Renewal Corporation, the non-profit formed to implement
the dam removal agreement. He says rescinding Jewell’s letter
has no legal effect.
For rural communities in the central coast region of
California, the name “Harvard” does not connote excellence. For
these communities, where water is scarce and becoming scarcer,
it evokes greed and exploitation. As California takes its first
steps to regulate groundwater in the midst of a worsening water
crisis, Harvard’s endowment fund is investing millions into
vineyards that pump inordinate amounts of water from
California’s critically overdrafted groundwater basins.
At first blush, Gov. Gavin Newsom’s latest action on water
seems fanciful and naive. But it has logic and conceivably
could work. Newsom wants to reexamine practically everything
the state has been working on — meaning what former Gov. Jerry
Brown was doing — and piece together a grand plan for
California’s future that can draw the support of longtime water
warriors.
For centuries, the Delta was a dynamic and rich ecosystem of
tidal wetlands, riparian forests, and vast seasonal
floodplains. But about 98 percent of the native habitat
disappeared after the Gold Rush and a population boom across
the Golden State.
Federal and state water managers have coordinated operations of
the CVP and the parallel State Water Project for many decades.
… But this intergovernmental water policy Era of Good Feeling
(relatively speaking) has come to a sudden and dramatic end
with the ascension of the Trump Administration.
A new analysis from Trout Unlimited shows the U.S. Geological
Survey underestimates the number of streams nationwide that
flow only following rain. … The analysis comes as the Trump
administration is soliciting comments on its Waters of the
U.S., or WOTUS, rule that would eliminate Clean Water Act
protections for ephemeral streams, which flow only following
rainfall.
Assemblymember Adam C. Gray (D-Merced) ripped the State Water
Resources Control Board on Tuesday for arguing that the harm
caused by the Bay-Delta Plan to the drinking water of
disadvantaged communities is not “significant”. Gray’s comments
came as his legislation, Assembly Bill 637, cleared the
Assembly Environmental Safety and Toxic Materials Committee
with bipartisan support.
For the millions of Californians who live and work far from the
Delta, it can be easy to overlook the splendor of the largest
estuary in western North America. Whether you are one mile or
hundreds of miles from the Delta, however, all Californians
have a stake in the survival and preservation of this fragile,
dynamic ecosystem that is also the keystone of the state’s
water supply system.
Among other ramifications, the new procedures largely duplicate
(and in some respects are inconsistent with) federal
procedures, but add a significant new layer to the already
byzantine regulatory process for permitting projects that
involve fill of federal and state waters and wetlands.
This post provides an overview of our recommendations for
actions the State Water Resources Control Board can take
before, during, and after droughts to make water rights
administration and oversight more timely, fair, and effective.
… Here are five actions the Board can take to build on past
gains and its institutional knowledge from past drought
experiences:
California regulators voted Tuesday to strengthen state
safeguards for thousands of wetlands and streams that are about
to lose federal protections in a Trump administration rollback
of the Clean Water Act. … The new state rules will insulate
California from Washington’s efforts to drop regulations that
prevent the destruction of isolated wetlands and seasonal
streams.
Russian River environmental watchdog Brenda Adelman accepted a
water stewardship award from California’s North Coast Regional
Water Quality Control Board last month in a ceremony at NCRWQCB
headquarters in Santa Rosa.
“The community is miserably divided,” said Napa County
Supervisor Diane Dillon during a meeting on Tuesday. Dillon and
her four fellow board members were tasked with crafting and
approving the Water Quality and Tree Protection Ordinance, a
controversial new law that seeks to conserve trees and forested
areas while improving water quality for the many creeks that
feed the Napa River.
The Trump administration has fast-tracked a process to deliver
more water to farms. But an investigation by KQED reveals those
changes are raising alarm among federal employees. In this
interview, we speak with KQED science reporter Lauren Sommer
about why, and what’s at stake.
Our rules, cobbled over time from various state water right
decisions or federal biological opinions, are too rigid. …
Things are done by an aging book. We are not adapting our
management based on testing new hypotheses collaboratively
advanced by stakeholders who are willing to celebrate the
results regardless of outcome.
A bill from Sen. Bill Dodd that would increase legislative
oversight of the controversial Sacramento-San Joaquin Delta
WaterFix project and allow for more public scrutiny has cleared
its first committee hurdle. The action comes less than a month
after Gov. Gavin Newsom said he wants to scale back the project
proposed by former Gov. Jerry Brown to a single tunnel.
Hundreds of Bakersfield agriculture, oil and political leaders
came together Thursday to examine the challenges and
opportunities associated with providing California residents
and businesses with a secure, reliable supply of clean water.
Lest the wet winter create a sense of complacency around one of
the state’s most vital needs, specialists from various fields
urged collective attention to the costly and increasingly
complex problems that surround sourcing, storing and conveying
water across the Golden State.
What better way to decompress from a stressful federal
government job than by trekking 2,600 miles on foot from Mexico
to Canada? That’s what Jared Blumenfeld, the new head of the
California Environmental Protection Agency, did three years
ago, setting out on the arduous and beloved Pacific Crest Trail
that traces California’s searing deserts, rugged mountains and
sparkling coastline.
The real-world implications of Gov. Newsom’s rejection of the
twin tunnels project became more apparent last week as the
Department of Water Resources (DWR) and the U.S. Bureau of
Reclamation requested and were granted a 60-day stay of
hearings with the State Water Resources Control Board (SWRCB).
Environmental groups, states, industry and conservatives are
watching the case closely, as its outcome could clarify or
narrow EPA’s historical interpretation of the types of
pollution discharges covered by the Clean Water Act. “This is
the most significant environmental law case in the last few
years,” said Beveridge & Diamond PC attorney John Cruden,
former head of the Justice Department’s environment division.
Too often, entrenched conflicts that pit water user against
water user block efforts to secure a sustainable, equitable,
and democratic water future in California. Striking a balance
involves art and science, compassion and flexibility, and
adherence to science and the law. Felicia Marcus is a public
servant unknown to many Californians. But as she concludes her
tenure as chair of the State Water Resources Control Board, we
owe her a debt of gratitude for consistently reaching for that
balance.
Felicia Marcus, whose push for larger river flows angered
farmers and community leaders in the Northern San Joaquin
Valley, won’t continue as chairwoman of the State Water
Resources Control Board. Gov. Gavin Newsom named Joaquin
Esquivel as chairman of the powerful water regulatory board.
… Laurel Firestone, co-founder of the Community Water
Center, was appointed as the replacement for Marcus.
… Firestone has been an advocate for addressing wells
contaminated with nitrates.
Despite many high priority issues on his plate, one of Gov.
Gavin Newsom’s first tests will be how he deals with
California’s water challenges and opportunities. Unfortunately,
in the last days of his term Gov. Jerry Brown made a bad
bargain with the Trump administration and special interests.
It’s yet another mess for the new governor to mop up.
A group of Northern California lawmakers seeking more sway over
a mammoth $17 billion water project introduced a proposal
Friday that would require new construction contracts to be
reviewed by the Legislature. The Legislative Delta Caucus
says because of the scope of the California WaterFix, the
project should require more scrutiny from both the public and
lawmakers now that former Gov. Jerry Brown has left office.
Details of the Sacramento River portion of the SWRCB’s plan are
still preliminary, but we expect the required water releases to
be higher for the Sacramento River, and its tributaries, than
they are for the San Joaquin River. SWRCB staff is currently
recommending that between 45 and 65 percent of the natural
runoff of northern California rivers be allowed to flow to the
ocean unimpeded.
Governor Newsom’s first proposed state budget, released earlier
this month, addresses several critical water and natural
resource management challenges. Here are highlights from his
plans to mitigate problems with safe drinking water, improve
forest health and reduce the risk of wildfires, and encourage
healthy soils to reduce greenhouse gas emissions and increase
drought resilience.
Bureau of Reclamation Commissioner Brenda Burman today named
Ernest A. Conant director of the Mid-Pacific Region. Conant has
nearly 40 years of water law experience and previously served
as senior partner of Young Wooldridge, LLP.
The State Water Resources Control Board has proposed flow
requirements for rivers that feed the Delta based on a
percentage of ‘unimpaired flows… If approved, this
‘unimpaired flows’ approach would have significant impacts on
farms, communities throughout California and the environment.
We join many other water agencies in our belief that
alternative measures …
Since taking office Jan. 7, Gov. Gavin Newsom has not
indicated how he intends to approach one of the state’s most
pressing issues: water. Newsom should signal that
it’s a new day in California water politics by embracing
a more-sustainable water policy that emphasizes
conservation and creation of vast supplies of renewable
water. The first step should be to announce the
twin-tunnels effort is dead.
For decades, the New River has flowed north across the
U.S.-Mexico border carrying toxic pollution and the stench of
sewage. Now lawmakers in Washington and Sacramento are pursuing
legislation and funding to combat the problems. “I feel very
optimistic that we’re going to be able to get some things done
on the New River issue,” said Assemblymember Eduardo
Garcia.
Citing what they say would be a disastrous decision for the
region, the Oakdale and South San Joaquin Irrigation Districts
have joined with other members of the San Joaquin Tributaries
Authority (SJTA) in a lawsuit challenging the state’s right to
arbitrarily increase flows in the Stanislaus and two other
rivers.
After more than three years, 104 days of testimony, and over
twenty-four thousand pages of hearing transcripts, the hearing
before the State Water Resources Control Board (State Board) on
the proposal to construct two tunnels to convey water under the
Delta (aka California WaterFix) is almost completed.
Probably, that is: there could be more if the project changes
again to a degree that requires additional testimony and/or
environmental review.
In an attempt to block the state’s plan to divert more water
toward the Sacramento-San Joaquin River Delta and away from the
Bay Area, the Santa Clara Valley Water District has filed a
lawsuit arguing the project could significantly reduce the
local water supply. If the plan advances, the water district
might have to spend millions of dollars to obtain alternate
water supplies and pull up more groundwater.
The city of San Francisco is not standing down in California’s
latest water war, joining a lawsuit against the state on
Thursday to stop it from directing more of the Sierra Nevada’s
cool, crisp flows to fish instead of people.
One of the Water Education Foundation’s most popular
events, Water 101 offers a once-a-year opportunity for anyone
new to California water issues or newly elected to a water
district board – and anyone who wants a refresher — to
gain a deeper understanding of the state’s most precious
natural resource. It will be held Feb. 7 at McGeorge School of
Law in Sacramento.
Jon Rosenfield: Last month the State Water Resources Control
Board finally required increased flows from three San Joaquin
River tributaries, as the first step in a process to update
water quality standards for the San Francisco Bay
estuary. The board opted for weaker environmental
protections in order to reduce impacts to agribusiness and San
Francisco, ignoring the potential for changed agricultural
practices and investment in sustainable water use to ease or
eliminate the impact of reduced water diversions.
A government-funded five-year, $100 million effort to develop
technologies around water desalination is seen as the best hope
in generations for making the technology accessible.
The growing leadership of women in water. The Colorado River’s persistent drought and efforts to sign off on a plan to avert worse shortfalls of water from the river. And in California’s Central Valley, promising solutions to vexing water resource challenges.
These were among the topics that Western Water news explored in 2018.
We’re already planning a full slate of stories for 2019. You can sign up here to be alerted when new stories are published. In the meantime, take a look at what we dove into in 2018:
Last month, the U.S. Bureau of Land Management released a
scoping report on hydraulic fracturing for oil and gas
development on approximately 400,000 acres of BLM-administered
public land and 1.2 million acres of federal mineral estate
lands on tribal and privately held lands in Fresno, Kern,
Kings, Madera, San Luis Obispo, Santa Barbara, Tulare and
Ventura counties.
Everyone who diverts water is required to report to the State
Water Board the amount they used. But Louis and Darcy Chacon
reported an amount that just didn’t make sense. The Chacons
reported they used more than 1 trillion acre-feet of water
annually from 2009 to 2013, more than is available on the
entire planet.
The report issued by California’s State Water Resources Control
Board marks a key step in a decade-long effort to remove four
hydroelectric dams and restore the health of the Klamath River.
The dam-removal project is part of a broader effort by
California, Oregon, federal agencies, Klamath Basin tribes,
water users and conservation organizations to revitalize the
basin, advance recovery of fisheries, uphold trust
responsibilities to the tribes, and sustain the region’s
farming and ranching heritage.
The California Supreme Court begins its landmark 1983 Mono Lake
decision with these powerful words: “The public trust is an
affirmation of the duty of the state to protect the people’s
common heritage of streams, lakes, marshlands and tidelands…”
… The focal point of the [Defense Trust] weekend was the
presentation of the Defender of the Trust Award, which
celebrates individuals who champion Mono Lake and advocate for
the public trust. This year’s recipient was hydrologist and
hydrogeographer Peter Vorster.
A lawsuit by a group of young Americans, which asserts the U.S.
government is harming them by having created a national energy
system that causes climate change, is on hold again after a
federal appeals court Thursday granted the Trump
administration’s motion for a temporary stay. … The
young plaintiffs also accuse the government of failing to
protect natural resources as a “public trust” for future
generations.
A group of young people can sue the federal government over its
climate change policies, the Supreme Court said Friday. Since
it was first filed in 2015, the government has requested
several times that Juliana v. United States be dismissed.
… Leigh-Ann Draheim, whose son Levi, 11, is the youngest
plaintiff, said the case was based in part on the public trust
doctrine. “People have the right to running water, clean water”
and clean air, Draheim told NPR.
PUMPING NEAR SCOTT RIVER IN SISKIYOU COUNTY SPARKS APPELLATE
CASE THAT EXTENDS PUBLIC TRUST TO SOME GROUNDWATER; EXPLORE
MAPS AND GUIDES TO LEARN MORE
In 1983, a landmark California Supreme Court ruling forced Los
Angeles to reduce its take of water from Eastern Sierra creeks
that fed Mono Lake. It marked a dramatic shift in California
water law by extending the public trust doctrine to tributary
creeks that fed Mono Lake, which is a navigable water body even
though the creeks themselves are not. Some 35 years later,
an appellate court in Sacramento for the first time has
concluded that the same public trust doctrine used in the Mono
Lake decision also applies to groundwater feeding the navigable
Scott River in a picturesque corner of far Northern California.
The lawsuit filed in 2015 argues that government officials have
known for more than 50 years that carbon pollution from fossil
fuels was causing climate change and that policies on oil and
gas deprive the young people of life, liberty and property.
They also say the government has failed to protect natural
resources as a “public trust” for future generations.
In 1983, a landmark California Supreme Court ruling extended the public trust doctrine to tributary creeks that feed Mono Lake, which is a navigable water body even though the creeks themselves were not. The ruling marked a dramatic shift in water law and forced Los Angeles to cut back its take of water from those creeks in the Eastern Sierra to preserve the lake.
Now, a state appellate court has for the first time extended that same public trust doctrine to groundwater that feeds a navigable river, in this case the Scott River flowing through a picturesque valley of farms and alfalfa in Siskiyou County in the northern reaches of California.
In 1983, a landmark California Supreme Court ruling forced Los
Angeles to cut back its take of water from Eastern Sierra
creeks that fed Mono Lake. Some 35 years later, an appellate
court concluded the same public trust doctrine that applied in
the Mono Lake case also applies to groundwater that feeds a
navigable river in a picturesque corner of far Northern
California. But will this latest ruling have the same impact on
California water resources as the historic Mono Lake decision?
California farmers are laboring under a daunting edict: They
must stop over-pumping groundwater from beneath their ranches.
The saving grace is that state law gives them more than 20
years to do it. Now, however, a landmark court ruling could
force many farmers to curb their groundwater consumption much
sooner than that, landing like a bombshell in the contentious
world of California water.
Does California need to revamp the way in which water is dedicated to the environment to better protect fish and the ecosystem at large? In the hypersensitive world of California water, where differences over who gets what can result in epic legislative and legal battles, the idea sparks a combination of fear, uncertainty and promise.
Saying that the way California manages water for the environment “isn’t working for anyone,” the Public Policy Institute of California (PPIC) shook things up late last year by proposing a redesigned regulatory system featuring what they described as water ecosystem plans and water budgets with allocations set aside for the environment.
The UC Berkeley School of Law along with stakeholders in Mono
Lake will convene a symposium in Sacramento on Nov. 17 to mark
the 20th anniversary of the State Water Resources Control
Board’s decision to integrate the Water Code, Fish and Game
Code and the common law of public trust to protect the lake and
its tributary creeks.
Water nerds unite! You’re not going to want to miss this
opportunity: the Mono Lake at 20: Past, Present, and
Future symposium on November 17, 2014,
in Sacramento, California. … Co-sponsors of the
event: UC Berkeley School of Law’s Center for Law, Energy & the
Environment; UC Berkeley College of Natural Resources; the
Water Education Foundation; Mono Lake Committee; California
Trout; and the Water and Power Law Group.
This drought year, as in those past, California water
regulators have given away to cities and farms some river flows
critical to fish and wildlife. … There are, however, legal
backstops to prevent harmful reductions in fish flows, even
during a drought as severe as this one.
The 28-page Layperson’s Guide to
Water Rights Law, recognized as the most thorough explanation of
California water rights law available to non-lawyers, traces the
authority for water flowing in a stream or reservoir, from a
faucet or into an irrigation ditch through the complex web of
California water rights.
The 20-page Layperson’s Guide to Water Marketing provides
background information on water rights, types of transfers and
critical policy issues surrounding this topic. First published in
1996, the 2005 version offers expanded information on
groundwater banking and conjunctive use, Colorado River
transfers and the role of private companies in California’s
developing water market.
Order in bulk (25 or more copies of the same guide) for a reduced
fee. Contact the Foundation, 916-444-6240, for details.
The 24-page Layperson’s Guide to California Water provides an
excellent overview of the history of water development and use in
California. It includes sections on flood management; the state,
federal and Colorado River delivery systems; Delta issues; water
rights; environmental issues; water quality; and options for
stretching the water supply such as water marketing and
conjunctive use.
Rooted in Roman law, the public trust doctrine recognizes the
public right to many natural resources including “the air,
running water, the sea and its shore.”
The public trust doctrine requires the sovereign, or state, to
hold in trust designated resources for the benefit of the people.
Traditionally, the public trust applied to commerce and fishing
in navigable waters, but its uses were expanded in California in
1971 to include fish, wildlife, habitat and recreation.
This printed issue of Western Water examines the area
of origin laws, what they mean to those who claim their
protections and the possible implications of the Tehama Colusa
Canal Authority’s lawsuit against the Bureau of Reclamation.
