[Water_news] 1. DWR'S CALIFORNIA WATER NEWS - Top Item for 3/24/08

Department of Water Resources

California Water News

A daily compilation for DWR personnel of significant news articles and comment

 

March 24, 2008

 

1.  Top Item

 

Ancient legal doctrine stirs Delta water fight; Board urged to base decisions on the needs of future generations

Contra Costa Times – 3/22/08

By Mike Taugher, staff writer

 

A powerful state agency is coming under increasing pressure to apply an ancient, obscure and potent legal concept to sort out the state's untenable water mess and save the Delta's dying ecosystem for future generations.

 

The public trust doctrine, which has roots in the Roman Empire, could lead to sweeping revisions in the amount of water that may be taken from the Delta.

 

The doctrine, which has been buttressed in California's courts, says that certain values belong to present and future generations and that the state has an obligation to protect those values. In the Delta, for example, that could mean regulators might strike a new balance between the needs for Delta water and recreational fishing and water quality.

 

The idea is prompting fierce opposition from some of the state's largest water agencies, who fear water will be taken away from them for environmental benefits.

 

Several months ago, an independent panel appointed to make recommendations on water policy and the Delta concluded public trust and a related constitutional doctrine should become the foundation of decision-making about California water.

 

The chairman of that panel, former legislative leader Phil Isenberg, told the State Water Resources Control Board this week that the status quo must change, but he added that proposed changes will face stiff opposition.

 

"Most people want to be assured that what they're doing now, they can continue to do it, and it will be cheap," Isenberg said.

 

Then this week, environmental and sport fishing groups threatened to sue unless the state board agrees to restrict two mammoth water pumping projects owned by the state and federal governments that they blame for the bulk of the Delta's environmental problems.

 

After a workshop this week on Delta issues, some observers said it appeared the board was unlikely to apply public trust protections any time soon.

 

"The state board has raised delay to an art form," said Bill Jennings, executive director of the California Sportfishing Protection Alliance, one of the groups that filed the petition.

 

Three members of the board declined requests for interviews, saying through a spokesman that it would be inappropriate to comment on an issue that they will later consider in a quasi-judicial proceeding.

 

But the pressure to ignore public trust issues may outweigh the pressure from the Isenberg's Delta Vision blue ribbon task force and the petition from environmentalists.

 

"An open-ended water rights proceeding for the protection of public trust values would be unwieldy, would greatly impede the progress on current planning efforts and is inappropriate and unnecessary at this time," the California Farm Bureau wrote to the state board.

 

And Jerry Johns, deputy director of the Department of Water Resources, which owns and operates a huge water pumping system that supplies water to the Tri-Valley, the South Bay and Southern California, urged the regulatory board to hold off at least until late 2009.

 

His rationale: The state's major water users are trying to craft an agreement with the regulatory agencies that enforce endangered species laws. A proceeding to weigh public trust issues could greatly complicate things, he said.

 

"The board has a long history of allowing the parties together to work on these issues," Johns told the board.

 

The public trust doctrine derived from Roman law that said, "By the law of nature these things are common to mankind -- the air, running water, the sea and consequently the shores of the sea."

 

English common law took that a step further and determined that the state owns navigable waterways and the land beneath them in trust for all people.

 

The public trust was referenced by high courts more than 100 years ago to halt hydraulic mining in California because the siltation that resulted in the Sacramento River impeded the public right to navigate the river.

 

It was also used to justify the Illinois Legislature taking waterfront land in Chicago back from a railroad to which the state had previously given the real estate. The U.S. Supreme Court ruled that such land could be given away for wharves and docks because those structures were consistent with the public's interest in navigation, but the wholesale grant to the railroad was not.

 

"The state can no more abdicate its trust over property in which the whole people are interested, like navigable water and soils under them, ... than it can abdicate its police powers in the administration of government and the preservation of the peace," the Supreme Court ruled.

 

The idea that the public trust doctrine could be applied to modern environmental disputes is credited to a 1970 law journal article by UC Berkeley law professor Joseph Sax.

 

But it was a 1983 decision by the state Supreme Court on Mono Lake that made clear that the state water board has the authority, and the duty, to apply public trust principles to water rights.

 

The Los Angeles Department of Water and Power had acquired water rights in Mono Lake near Yosemite National Park. Its use of that water was drawing the lake down, making it smaller, saltier and exposing land bridges that allowed coyotes to reach birds' nest on what had previously been inaccessible islands.

 

The court ruled that the beauty and recreation afforded at Mono Lake were public trust values, forcing Los Angeles to reduce its reliance on Mono Lake and restore the lake.

 

But the court also ruled that the environmental protection afforded by the public trust doctrine was not absolute -- that the state also had the authority to allow water diversions that harmed public trust values.

 

"Just as the history of this state shows that appropriation may be necessary for efficient use of water despite unavoidable harm to public trust values, it demonstrates that an appropriative water rights system administered without consideration of the public trust may cause unnecessary and unjustified harm to trust interests," the court ruled.

 

In 1986, a state appeals court ruled in a sprawling decision on Delta water quality that the state board has the authority to modify permits to operate the state water department's State Water Project and the federal Central Valley Project to protect fish and wildlife.

 

"It seems that 22 years after the (appeals court) decision, the Delta is in worse shape," said Richard Frank, the executive director of the California Center for Environmental Law and Policy and UC Berkeley's Boalt Hall and a member of the Delta Vision task force.

 

"The application of public trust values makes a lot of sense," he said, adding that such a proceeding is "the unfulfilled legacy of the Mono Lake decision."

 

The state board is considering whether to wield its authority over public trust as part of a larger package of measures meant to address the Delta's problems. A decision could be made in late spring. #

http://www.contracostatimes.com/news/ci_8660995?nclick_check=1

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