Presentation on California Water Rights Law Local Governments: Navigating the California Constitution

1. Presentation on California Water Rights Law Local Governments: Navigating the California Constitution The Municipal Law Institute of the League of California Cities California Constitution Center, U.C. Berkeley School of Law February 8, 2013 David Aladjem Downey Brand LLP Sacramento, California

2. Introduction • Purposes of the Presentation • Describe the types of water rights recognized under California law • Describe the key elements of water rights • Describe Article X, Section 2 of the California Constitution • Describe “Coming Attractions”

3. A Quick Overview of California Water Rights Law • Types of Surface Water Rights • Riparian rights – based on the ownership of land adjacent to a river • Appropriative rights – based on the use of water • Pre-1914 appropriative rights • Post-1914 appropriative rights

4. A Quick Overview of California Water Rights Law • Characteristics of an Appropriative Right • Must take control of the water at a specific point(s) • Diversion out of a stream • Storage behind a dam • Instream flows – by themselves – are not sufficient • Must place the water to a beneficial use • Municipal and industrial • Agriculture (including aquaculture and forestry) • Environmental uses (tricky)

5. A Quick Overview of California Water Rights Law • Characteristics of an Appropriative Right (cont’d) • Must use the water on a specific parcel(s) of land • Must use the water during a defined season during the year

6. A Quick Overview of California Water Rights Law • Rights to Groundwater • Overlying rights (based on land ownership) • Analogous to riparian rights to surface water • Part of the fee simple estate • Allows the landowner to extract a proportional share of the safe yield of the groundwater basin

7. A Quick Overview of California Water Rights Law • Rights to Groundwater (cont’d) • Appropriative rights (based on use of water) • Analogous to appropriative rights to surface water • Limited to the quantity of the safe yield not being used by overlying landowners • Municipal rights to groundwater are always appropriative rights

8. A Quick Overview of California Water Rights Law • Overriding Principles of California Water Law • All uses of water must be for a beneficial purpose and must be reasonable in quantity. This principle is enshrined in Article X, section 2 of the California Constitution. • For surface waters, the State Water Resources Control Board (or a court) must give effect to both the system of water rights and the public trust doctrine. Neither doctrine trumps the other. Groundwater is not subject to the public trust doctrine.

9. A Quick Overview of California Water Rights Law • Article X, Section 2 • History: Herminghaus v. Southern Calif. Edison (1926) • Riparian right on the San Joaquin River • Used the water to replenish the soil • Constitutional Amendment (1928) • All uses of water must be reasonable • Intended to facilitate storage by limiting riparian claims (e.g., construction of Friant Dam and the Central Valley Project)

10. A Quick Overview of California Water Rights Law • Article X, Section 2 • 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. • The waste or unreasonable use of water is to be prevented and a water right does not extend to the waste or unreasonable use of water.

11. A Quick Overview of California Water Rights Law • Key Points Often Overlooked • Article X, section 2 requires that the water resources of California be put to use “to the fullest extent of which they are capable.” • Thus, multiple uses are favored; reserving water for a single-purpose use will be disfavored. • The reuse and recycling of water is favored; dedication of water to a single-purpose is disfavored.

12. A Quick Overview of California Water Rights Law • Key Points Often Overlooked (cont’d) • Article X, section 2 applies to all uses of water, including the environment. • Example: • The Delta Reform Act (2009) requires that the State of California pursue the “co-equal goals” of improving water supply reliability and ecosystem restoration • Multiple uses/multiple goals/multiple benefits is the principle at the heart of Article X, section 2

13. A Quick Overview of California Water Rights Law • What is a reasonable use? It depends. • A reasonable use can change over time • Dependent on all circumstances • Examples • Drowning gophers is not reasonable • Gathering aggregate is not reasonable • Excessive losses from an irrigation ditch are not reasonable • Physical solutions are reasonable

14. A Quick Overview of California Water Rights Law • Coming Attractions • Is it reasonable to continue to divert water through the Delta, given the possibility of earthquakes and harm to the ecosystem? • Is it reasonable to devote water to fish that are likely to be extirpated due to climate change? • Is it reasonable to use 300,000 acre-feet to make the Lower Sacramento River less salty? • Is it outdoor landscaping reasonable in California’s Mediterranean climate? Are lawns reasonable?

15. A Quick Overview of California Water Rights Law Questions?