A blast from the past: the public trust doctrine and its growing threat to water rights.

Author:Smith, Milan D., Jr.
Position:ESSAYS - Ess

Unprecedented water shortages in the Western United States have led to similarly unprecedented attempts to restrict water usage, some of questionable legality. In this article, Ninth Circuit Court of Appeals Judge Milan D. Smith, Jr. surveys the state of water shortages, government responses thereto, and the history of water rights in the United States. He then considers whether the public trust doctrine, which the United States inherited from the English common law, might be employed to change the way water is used and distributed. Judge Smith examines how such a use of the doctrine compares to earlier applications, and how other procedural and substantive laws may affect attempts to litigate water cases employing the public trust doctrine. The article closes with questions about the role of the judiciary, federalism, and the Constitution in the application of the public trust doctrine.

  1. INTRODUCTION A. California Constitutional Provisions B. Summary of Challenges Facing California II. Water Rights and the Public Trust Doctrine A. History of Water Rights in the United States B. Public Trust Doctrine III. Litigating Public Water Rights A. Legal Doctrine B. Standing C. Role of the Judiciary D. Federalism E. Takings Clause 1. Investment-Backed Expectations 2. Public Utilities 3. Compensation and the Police Power IV. Conclusion I. INTRODUCTION

    Water shortages are a reality on the West Coast. California is facing the worst water crisis in its modern history. (1) The economies of other western states are also adversely affected by this crisis. For example, in Oregon and Washington, statewide snow accumulation in the Olympic Mountains, the source of a significant amount of the water flowing into nearby rivers and streams, is around 16% of its normal level. (2) In Oregon, the governor has declared a drought in twenty-five out of thirty-six counties. (3) In Washington, almost 68% of the state was classified as in extreme drought by the United States Drought Monitor from September 2015 through October 2015. (4)

    Mandatory residential watering restrictions are in effect in parts of both Oregon and Washington. (5) Portland's municipal reservoir was three billion gallons short of its average July supply. (6) Only six times since 1960 has as much acreage been destroyed by fire in Oregon as in 2015. (7) In July, the Washington Department of Fish and Wildlife restricted fishing on more than sixty rivers and streams to protect wildlife under stress from reduced water flows and increasing water temperatures. (8)

    This has already had a significant adverse impact on agricultural and rural interests in those two states. (9) Farmers, ranchers, miners, foresters, resource developers, and other natural-resource-dependent entities all rely on a supply of water to sustain their industries. Along the Klamath Basin's Sprague River, those with water rights dating from after 1905 have been regulated to save water for senior users. (10)

    1. California Constitutional Provisions

      In this Essay, I will frequently refer to California's plight because it serves as a good case in point, and the public trust doctrine has already been periodically applied by its courts to protect fresh water resources. (11) The public trust doctrine is embedded in California's constitution, and requires that the government protect water resources for use by the citizens of the state. (12) In Oregon and Washington, on the other hand, courts have to date only applied the public trust doctrine to protect public access to navigable waters. (13) Neither Oregon's nor Washington's state constitutions presently recognize the application of the doctrine to conserve water resources themselves, (14) but the common law doctrine has not been repudiated. (15)

      California Constitution, article X, section 2 provides that:

      It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. (16) Article X, section 5 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." (17)

    2. Summary of Challenges Facing California

      A May 2015 report released by the California Department of Food and Agriculture calculated that the 2015 drought will cost California $2.7 billion in revenue and erase more than 18,600 jobs from California's economy. (18) Many of these jobs are in the Central Valley, (19) California's breadbasket.

      As one of the principal suppliers of agricultural goods to the United States, and a leading exporter to other parts of the world, California faces continual pressure to sustain agricultural production. (20) Despite drought conditions, some California farmers have continued to realize significant profits. (21) This is possible because of rising crop prices, and because farmers have increasingly begun to rely on groundwater, the water located beneath the earth's surface. (22)

      In 2014, farmers replaced about 75% of their surface water deficit by draining groundwater reserves. (23) Groundwater is a limited resource, and some states already overdraw groundwater resources faster than they are being replenished, and sometimes take groundwater from other states. (24) At present, two cases are pending before the United States Supreme Court alleging misuse of groundwater by other states, and one similar case was decided last term. (25)

      Prior to California's current water crisis, the state often overdrew its groundwater by millions of acre-feet a year. (26) Groundwater supplies also are threatened by saltwater seepage, which can result from low groundwater levels, which reduces the pressure that keeps out the denser saltwater. (27)

      The drought has exacerbated groundwater shortages. A recent article in The New York Times concluded that: "Farmers are drilling wells at a feverish pace and pumping billions of gallons of water from the ground, depleting a resource that was critically endangered even before the drought, now in its fourth year, began." (28) The rapid depletion of groundwater has also occasionally led to the sinking of land. (29) In August of 2015, the Jet Propulsion Laboratory, part of the National Aeronautics and Science Administration (NASA), released satellite data showing that the San Joaquin Valley is sinking nearly 2 inches per month in some locations. (30)

      On April 1, 2015, Governor Jerry Brown, for the first time in state history, directed the California State Water Resources Control Board to implement mandatory water reductions in cities and towns across California with the objective of reducing water usage by 25%. (31) The order has had a significant short-term effect. Water use in May of 2015 dropped 28.9% compared with the same month in 2013, deepening the 13.5% drop the previous month. (32) In June and July of 2015, California's water use held at 29.5% below the usage in those months in 2013. (33)

      California also has continued implementing legislation passed in September of 2014 that aims to regulate groundwater use. (34) The Sustainable Groundwater Management Act (35) represents the first statewide effort to comprehensively measure and manage groundwater. (36) The law empowers local agencies to bring groundwater basins into sustainable patterns of pumping and recharge. (37) However, the law does not require the state to meet several of its sustainability goals until 2042. (38)

      Importantly, on June 12, 2015, California imposed water controls on senior water rights holders, individuals who hold valuable rights to water based on the principle of "first in time, first in right." (39) Under California's prior appropriation doctrine, these water rights holders normally can access water to the exclusion of junior water rights holders. (40) The new controls in California restricted water use by 114 senior water rights holders in the San Joaquin, Delta, and Sacramento watersheds, and affect hundreds of farmers in the Central Valley because farmers are usually the ones with senior water rights. (41) Some curtailments affected senior water rights dating back to 1858, well before the 1914 cutoff that is the usual division in California between senior and junior rights. (42) And California is policing the 1914 line--it reviewed San Francisco's water rights and determined that four of San Francisco's statements of water diversion and use incorrectly claimed a pre-1914 first use. (43) While the rights-holders obtained a temporary restraining order against the enforcement of those curtailments, (44) it is clear that the California Water Board mind-set has shifted, and it will look for ways to challenge long-established users.

      More water conservation measures will likely be necessary, even if present consumption levels decrease and there is significant new rainfall and snowfall. One article estimates that "California's cities consume 178 gallons per person per day, on average. That's 40 percent more than the per capita water consumption in New York City and more than double that of parched Sydney, in Australia." (45) California's population and agricultural industry are outpacing the state's ability to supply water to its population. (46)

      Government-mandated water conservation efforts also confront political challenges. Farmers and the agricultural industry utilize large quantities of water. They are also important interest groups, both at the state and federal levels. Governor Brown's April Executive Order, unsurprisingly, exempted the agricultural industry...

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