A Plan to Restore the Public Trust Uses of Rivers and Creeks
Natural Heritage Institute (NHI)
Texas Law Review, Vol. 83, No. 7, pp. 1929-1939, June 2005
Of Water Banks, Piggybanks, and Bankruptcy: Symposium on Changing Directions in Water Law
This Article appears in a symposium largely concerned with the voluntary transfer of water rights from one developmental use to another. "Bank" is the essential word in the symposium title: How will such market transactions complement traditional regulation to help ensure adequate water supply? This Article uses the concept of banking in a different sense. It concludes that navigable waters and their uses for navigation, commerce, and fishing are public properties that the State, as trustee, holds in trust for the benefit of the people. The State may permit development (such as LADWP's appropriations from Rush and Lee Vining Creeks), but not to the extent of unnecessary harm to the public trust. This is conceptually similar to a private trustee's duties to the beneficiary of a monetary trust-loyalty, prudent management, and effective control of the trust assets. This Article asks: How will the State affirmatively apply the doctrine to remedy the substantial harms to trust uses of waters (other than Lee Vining and Rush Creeks) that were authorized before the Mono Lake Cases and that continue today? Since 1983, the public trust doctrine has been applied reactively in California when new water right applications are filed or when proceedings are necessary to comply with the federal Clean Water Act, Endangered Species Act, or other statutes. These applications, while important, are localized. The SWRCB has not retroactively applied the doctrine to the vast majority of the 13,000 appropriative rights that it had issued or perfected before 1983, or the more than 8,000 pre-1914 appropriative, riparian, and pueblo rights. The California Water Code Division 2 implements the water rights system; it does not have a rule or procedure that requires periodic review of these rights for compliance with the public trust doctrine. As a result, the uses of such rights (in compliance with terms issued only under the Water Code Division) continue to cause substantial impairment to the trust uses of thousands of public trust waters. For example, the State has lost more than 90% of its historic habitat of salmon and steelhead fisheries in the Central Valley.
This Article concludes that the public trust will be restored and protected, as required by the doctrine, only if the SWRCB more effectively integrates the common law into a comprehensive regulatory process that reaches existing as well as new water rights. One such process is water quality planning, undertaken triennially, as required by the federal Clean Water Act and the implementing provisions of the California Water Code Division 7. While the scope of these plans is typically limited to point and non-point sources of pollution, the California Water Code Division 7 authorizes a broader scope-namely, all existing facilities and activities, including existing water rights, that affect the physical, biological, and chemical integrity of the State's waters. Of course, any such review of existing water rights must be accomplished in a manner that protects the water supply, associated property rights, and economy of the State. This Article asks: If the public trust doctrine continues to be applied only reactively, what will be left of this public trust when the population of this State has grown to 50 million by the year 2025?
Number of Pages in PDF File: 11
Date posted: January 11, 2006