Chapter 14 The Confluence - Navigating Ethical Considerations for Water Practitioners
Jurisdiction | United States |
Chapter 14 The Confluence - Navigating Ethical Considerations for Water Practitioners
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MEREDITH E. NIKKEL is a partner in Downey Brand's water law practice group where she applies practical problem solving to complex water resources disputes. She regularly counsels public and private clients in administrative and judicial water right proceedings, public hearings on complex, multi-party water right applications and petitions as well as ground and surface water management concerns throughout the state. She is currently representing federal water contractors in lawsuits related to Endangered Species Act and CEQA compliance for ongoing operations of the Central Valley Project and State Water Projects. Meredith serves on the editorial board of the California Water Law & Policy Reporter and has contributed as a co-author to the American Bar Association's publication on Water Rights and Environmental Regulation on subjects including the Endangered Species Act and contracting with the United States Bureau of Reclamation. She served as Co-Chair for Argent's Annual California Water Law & Policy Conference from 2018 through 2022. Meredith is honored as a Best Lawyer in America® in Water Law and has been recognized by her peers as a Sacramento Magazine Top Lawyer since 2015. In 2019, she received the distinction of being a 40 Under 40 honor by the Sacramento Business Journal. Meredith received her Juris Doctor, with distinction, from Stanford Law School and her Bachelor of Arts, summa cum laude, from the University of California at Berkeley. Outside of the office, Meredith serves on the Board of Directors for the Sacramento Tree Foundation and can be found at all manner of sporting and outdoor activities with her husband and two children.
I. Introduction
It is a bedrock principle in the legal profession that an attorney owes each client duties of loyalty and of confidentiality. Representation of two or more clients with overlapping interests carries potential conflicts in both an ethical and practical sense. When placed in the context of water law, these issues arise frequently and take on greater complexity, fueled by the shared interest in a public resource that is essential to all life on this planet. Water is the lifeblood of our country; for its growing cities and suburbs, its vast forests and wildlands, and for its agriculture that feeds the country and the world. And yet water is a shared resource that can be scarce, which means conflict is never far away.
Mark Twain purportedly once said "Whiskey is for drinking; water is for fighting." If all water law disputes were viewed in this light, then it would become impossible for a lawyer or a law firm to ever represent multiple clients with an interest in a single water supply. In the representation of water right holders, multiple clients frequently have interests in the same water source, which may or may not at one point become adverse to one another, making the identification of potential conflicts a complex analysis. While water lawyers are subject to the same ethical rules regarding loyalty, confidentiality, and independent judgment as other attorneys, the unique nature of water law practice has them confronting these issues on a regular basis. In some instances, the overlapping interests and potential for conflicts can appear incongruent with ethical rules that demand absolute and unqualified loyalty.
However, the rules of professional conduct also require a lawyer to exercise independent judgment, which may necessitate reconciling a client's interests or objectives with the bigger-picture values and goals of the representation. During his confirmation hearings to become a Justice of the United States Supreme Court, Louis Brandeis famously challenged the traditional idea that a lawyer must avoid potential client conflicts at all costs, proclaiming himself to be a lawyer for "the situation."1 Justice Brandeis emphasized the important role a lawyer can play as a mediator and problem solver in situations where multiple clients are not adverse, but the potential for conflicts looms.
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Representing clients on water conflicts can require an attorney to consider how to be a lawyer for the situation when navigating the dilemmas of ethical lawyering in the hotly disputed areas of water law. The very nature of water as an essential public resource requires lawyers to meet the needs of clients in the context of important public values that go hand-in-hand with the principles of water law.
II. Key Principles of Water Law
Water is one of the planet's most abundant natural resources. It is necessary for the survival of virtually every living plant and animal, but—due to any number of geographical, geological, climatic, and socio-political factors—water demand may not always align with available water supply.2 Water law encompasses a range of issues, including the right to use water, water quality, environmental habitat protection, and flooding or nuisance. As a carry-over from English common law, each state administers water rights under its own regulatory system for allocating and distributing water with minimal federal oversight, save for interstate compacts or international treaties. There are, however, a number of concepts in water law that are common among most, if not all, states to one degree or another.
Public Ownership of Water
Stemming from their formation as sovereign entities, many states enshrine the public's ownership of natural resources such as water in their constitutions or statutes.3 The concept of a public right to water is often associated with the protection of environmental resources, rights of access, and the public trust doctrine, by which states have a continuous duty to preserve recreation, navigation, and other beneficial uses in trust on behalf of the public.4 States have adopted different systems for the allocation and administration of water rights, based on the relative scarcity or abundance of water, geographical conditions, and the association with land ownership.5
Public Trust Doctrine
The common law public trust doctrine requires states to act as a steward of the natural resources and lands traditionally thought to be part of the public domain, such as tide and submerged lands and navigable waterways.6 Public trust uses include the public's right to use waterways to engage in commerce, navigation, and fisheries, as well as the right to swim, boat, and recreate, and the preservation of lands to protect scenic and wildlife habitat values.7 The public trust doctrine has
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quietly existed as a background principle associated with state sovereignty.8 But in the context of water rights, particularly in the western United States, the doctrine has been invoked to require trustee agencies' consideration of impacts to the trust when allocating water resources, and protect trust values where feasible.9
Usufructuary Right
As a function of the public's ownership of water, a private water right is considered usufructuary, meaning the right is to use water, rather than own the physical molecules.10 Making a claim to water cannot be done in the traditional manner of capturing and bounding a resource such as land. The costs of defining and enforcing property rights in water are unique and typically much greater because of its usufructuary nature.11
Beneficial Use
Beneficial use of water is broadly considered any use of water that results in appreciable gains or benefits to the user, consistent with state law, such as domestic and municipal use, industrial use, irrigation of agriculture...
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