Public Policy Issues and Sustainability in Southern California: A Practitioners Lecture Series at the UCR The Sustainability of California s Water

Transcription

1 Public Policy Issues and Sustainability in Southern California: A Practitioners Lecture Series at the UCR The Sustainability of California s Water Eric L. Garner Best Best & Krieger LLP

2 Bases of Water Law California Water Policy and Law is Complex But the Problem is Simple

3 Historical Bases of Water Law People Live Where the Water Isn t

4 Introduction "A man from the west will fight over three things: water, women and gold, and usually in that order." - Arizona Senator Barry Goldwater

5 Historical Bases of Water Law Two Parts To California Water Sustainability Supply Legal Structure

6 California Water Supply

7 California Water Supply

8 California Water Supply

9 California Water Supply Western Municipal Water District

10 California Water Supply

11 California Water Supply

12 California Water Supply

13 California Water Supply

14 California Water Supply

15 California Water Supply

16 California Water Supply

17 DWR s Draft SWP Delivery Reliability Report, 2009

18 Is our water law ready for the 21st Century?

19 Themes in California Water Law Connection Between Property Ownership and Right to Use Water All Water Rights Are Usufructuary ( Use ), No Private Ownership

20 Why do water lawyers love California?

21 In California, whiskey is for drinking, and water is for fighting. -- Mark Twain

22 California has most complex water law in United States Surface water - riparian, appropriate, prescriptive Groundwater overlying, appropriative, prescriptive

23 And you may ask yourself Well how did I get here The Talking Heads

24 The California Legislature 1850 Probably late in the afternoon

25 The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.

26 Riparian Rights Right of landowner next to surface water to use enough water to meet needs of that land Correlative and of equal priority Runs with land, not lost by non-use Not quantified Not regulated or permitted by State

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28 Riverside County Early 1900 s

29 Riparian rights do not work well in arid lands By 1887, Colorado, Utah, Idaho, Montana, Wyoming, New Mexico, the Dakotas and Arizona had legislatively eliminated them in favor of appropriative rights What was happening in California?

30 The Gold Rush Mining large-scale irrigation diversions in mining ditches Miners didn t own land Prior appropriation

31 Appropriative Water Right Right to divert specific quantity to specific location for specific purpose(s) Does not depend on ownership of land First in time, first in right Use it or Lose it May be used on lands away from streams or outside a watershed

32 All other western states eliminate riparian rights In 1886 California Supreme Court writes 100 page decision keeping both riparian and appropriative rights Now there are a small number of riparian rights but

33 Groundwater Law Early 1900 s - groundwater starts to emerge as a source of water Percolating Groundwater English law is Rule of Capture

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35 Groundwater Law California Supreme Court rejects rule of capture No milk shake drinking Effectively adopts riparian right for groundwater ( overlying right )

36 Overlying Right To use percolating groundwater must own overlying property Must be used on overlying property Not quantified Correlative Not lost by non-use Not regulated or permitted

37 Appropriative Right Right to pump specific quantity Does not depend on land ownership First in time, first in right Not permitted or regulated Lost by non-use Must be surplus to overlying uses Almost all municipal and industrial uses are appropriative

38 California has no statewide regulation of groundwater Texas is only other State that doesn t have some type of comprehensive groundwater regulation

39 Where are We Now? Surface Water Riparian rights unregulated Appropriative rights regulated and prioritized based on time use began, not on economic value or current societal values

40 Where Are We Now? Underground Water Largely unregulated, agricultural uses (overlying uses) generally have priority

41 Where Are We Now? Eric s Old Rule of Ground Water Law: Pump Until You Get Sued

42 Where Are We Now? Eric s Revised Rule of Groundwater Law: Pump Until a Judge Tells You Not To

43 Current Challenges Groundwater Regulation Unquantified overlying rights Conjunctive Use in unregulated groundwater basins Ownership of stored underground water Overlying priority

44 Current Challenges Recycled Water Water Code Section 1210 states that owner of treatment plant holds exclusive right as against suppliers After water enters ground? After water transported in river? Must it be used directly?

45 Current Challenges Environmental Uses Water rights for instream uses? Endangered Species Act

46 Current Challenges Land/Water Rights Connection Should it be severed? Chile (privatized resource) Australia (public resource) freely transferrable Pros economically efficient, promote reallocation Cons social and environmental costs