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.
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.
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.
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.
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.
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 2000 version offers expanded information on groundwater banking and conjunctive use … Colorado River transfers, CALFED’s Water Transfer Program 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.