Editor’s Note: This piece is part of a four-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that studies the public trust doctrine, the stark contrast of its history and development in Colorado and California, and the implications of its extension to groundwater.

INTRODUCTION

The public trust doctrine (“PTD”), moldable to each state’s individual needs, follows the central premise that the state, as trustee, holds natural resources such as water in trust for the benefit of its citizens.[1] The United States Supreme Court has opined that the doctrine’s definition and parameters are a matter of state law and that each state can choose to create a public trust or not.[2] Unlike California and various other states, Colorado has never adopted the doctrine, instead relying on its system of prior appropriation to protect public interests. The Colorado Constitution declares surface water (and tributary groundwater[3]) “to be the property of the public” that is “dedicated to the use of the people of the state.”[4] The right to divert water for beneficial use “shall never be denied,” the state constitution continues.[5] Colorado courts have consistently held that the state’s constitution fails to provide a foundation for the implementation of a public trust for water.[6] Despite the lack of a PTD in Colorado, the state has made efforts to work within the prior appropriation system to preserve the natural environment, fish, and wildlife,[7] and to protect recreational uses.[8]

HOW COLORADO ADDRESSES PUBLIC INTEREST AND ENVIRONMENTAL CONCERNS

Unlike California, where courts have expanded the PTD to encompass environmental protection in the realm of surface water and, recently, some tributary groundwater use,[9] Colorado, in the absence of a state PTD, has created specific statutory programs and beneficial uses for water to address public interests such as recreation and the environment.[10] Specifically, Colorado law permits the state to appropriate or acquire instream flow rights that operate within the prior appropriation system to protect minimum streamflows for fish and other purposes. Colorado has also addressed recreational concerns by expanding the definitions of beneficial use and diversion to permit “recreational in-channel diversion” decrees, which have the byproduct of also simultaneously protecting flows necessary to protect the natural environment.[11] Both of these expanded definitions of beneficial use include a caveat that constrains who can appropriate water for such uses.[12] A brief look into the legislative and legal history of these adaptations to beneficial use highlights how Colorado’s prior appropriation law endeavors to protect public interests as well as the environment in the absence of a robust PTD.

INSTREAM FLOWS

Statewide concern about aquatic habitat spurred legislators to expand the definition of beneficial use in Colorado in 1973.[13] The expanded definition enabled the appropriation of environmentally-protective minimum flows in Colorado lakes and streams.[14] Under Colorado law, beneficial use is

the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made and, without limiting the generality of the foregoing, includes . . . (c) For the benefit and enjoyment of present and future generations, the appropriation by the state of Colorado in the manner prescribed by law of such minimum flows between two specific points or levels for and on natural streams and lakes as required to preserve the natural environment to a reasonable degree.

To limit this expansion of the definition of beneficial use, the Colorado General Assembly granted exclusive authority to appropriate instream flows to the Colorado Water Conservation Board (“CWCB”).[16] For the CWCB to initiate a water appropriation, it must make a determination that preservation of the natural environment will occur to a reasonable degree by the current amount of water available for appropriation.[17] If a reasonable degree of natural environment preservation can occur by CWCB’s instream flow appropriation, the right is created but it must not cause material injury to senior surface water or tributary groundwater rights.[18]

The water rights the CWCB appropriates are junior rights, but they do not require a diversion.[19] In 1979 the Supreme Court in Colorado River Water Conservation District v. Colorado Water Conservation Board confirmed that the CWCB did not need a diversion to appropriate water.[20] The Court outlined that the state constitution only uses the word “divert” once and that it does not mandate that diversion be an essential element of appropriation in Colorado.[21]

This confirmation of the CWCB’s ability to appropriate water without a diversion allowed the CWCB to work to preserve lakes and streams; in its duty to appropriate to protect the natural environment, the CWCB has preserved cold and warm water fisheries, waterfowl habitat, glacial ponds, unique hydrologic and geologic features like Hanging Lake, and critical habitat for threatened or endangered native fish.[22] These types of environmental protections are also at the core of the PTD’s ability to protect the natural environment for the public interest.[23] Colorado’s instream flow program therefore provides for these environmental protections in the absence of a public trust doctrine.

The CWCB has instream flow rights “on more than 1,500 stream segments covering more than 8,500 miles of stream and 477 natural lakes.”[24] In 2002 the Colorado General Assembly authorized the CWCB to acquire existing senior water rights by lease, purchase, or donation in order to enable CWCB to further protect the natural environment.[25] Instead of only appropriating junior rights for minimum stream flows, now the CWCB can obtain decreed, senior rights and put those rights to instream flow use to preserve and improve the natural environment.[26] This expansion of the instream flow program creates more potential for environmental protection in the state: since the 2002 change, the CWCB has completed more than twenty voluntary water acquisition transactions.[27] These legislative enactments exemplify an alternative approach to the PTD and allow for a state without a PTD to protect aquatic life and habitat, and to maintain minimum flows throughout the state, by other means.

RECREATIONAL IN-CHANNEL DIVERSIONS

In 1998 the City of Golden saw an opportunity to develop a recreational niche and filed an application for a decree for one thousand cubic feet per second (“cfs”) of water for the months of May, June, and July for its whitewater sports park.[28] This very large application spurred the water court to address the definition of diversion and beneficial use. The water court stated that structures that control, concentrate, and direct the flow of water constitute a diversion.[29] The water court also confirmed that using water for recreational boating is a beneficial use.[30] On appeal, the Colorado Supreme Court affirmed the decree.[31] This decision confirmed that recreational in-channel diversions (“RICDs”) could be very large and opened up the possibility that RICDs could have negative impacts on upstream transfers, storage, and trans-mountain diversion plans.[32] Following the court’s decision, in 2001 the Colorado General Assembly enacted Senate Bill 216 (“SB 216″) to address similarly large RICD applications.[33]

SB 216 implemented restrictions on RICDs similar to those imposed upon instream flow rights. The bill changed the definition of beneficial use and diversion to specify that only “a county, municipality, city and county, water district, water and sanitation district, water conservation district or water conservancy district” could divert water for the beneficial use of recreational in-channel purposes.[34] The ability to control water for RICDs, therefore, is only for those specified entities.[35] This new bill also defined RICD as “the minimum stream flow as it is diverted, captured, controlled, and placed to beneficial use between specific points defined by physical control structures pursuant to an application filed by a [local government entity] for a reasonable recreation experience in and on the water.”[36] The law mimics the instream flow regulations, requiring a municipality seeking a RICD to first submit an application to the CWCB for review and recommendation, and to then bring the application to the water court for final review.[37] Public policy concerns and the technical expertise needed to analyze RICDs resulted in the selection of the CWCB as the recommending body for RICDs.[38]

The role of the CWCB in the RICD application process caused quite a controversy and led to a Colorado Supreme Court confirming the CWCB’s authority to recommend RICD applications.[39] In 2002 the Upper Gunnison River Water Conservancy District filed a RICD application with the CWCB.[40] The CWCB significantly reduced the amount of water in the application to an amount it considered reasonable and then made a favorable recommendation to the water court.[41] When the application moved to the water court for review, the CWCB had made no factual findings, as statutorily required.[42] The water court made its own findings, based on the statutory factors outlined in SB 216, and granted the decree for the full application amount.[43] The CWCB appealed the decree to the Supreme Court, which held that the CWCB is a “narrowly constrained fact-finding and advising body” when reviewing RICD applications and must act as such.[44] The court agreed with the CWCB’s concern about water waste and held that decreed RICD water rights are only for the minimum amount needed for a reasonable recreational experience.[45]

While the role of the CWCB in approving RICDs and determining the minimum flow needed for recreation has proved tenuous at times, RICDs have provided for the protection of flows that benefit recreational interests, but also the natural environment.[46] RICDs are appropriated for recreational beneficial use, but by leaving the water in the streams for recreational use they provide for minimum instream flows that benefit the natural environment. More than ten cities, counties, and water districts hold decreed RICDs in Colorado.[47] These municipalities may find RICD tourism and economic benefits as the greatest assets, but RICDs also allow for environmental conservation.[48] Demonstrating that recreational interests span from boating to fishing, Trout Unlimited has indicated the potential for RICDs to benefit fish and recreational fishing by protecting flows sufficient to support habitat.[49]

Colorado courts have consistently held that there is no public trust doctrine, but RICDs do consider the public interest to some extent.[50] Similar to legislatively‑enacted minimum instream flow rights, RICDs are a legislative means to address the public interest without impinging on Colorado’s system of prior appropriation.[51] RICDs, while legislatively constrained, address the public interest in providing minimum flows for recreation. This collaterally provides for the preservation of the natural environment.[52] The intention of Colorado legislators may not have been to provide for the aquatic environment directly, but RICDs certainly have that additional benefit.[53]

CONCLUSION

Colorado courts have consistently held that the public trust doctrine does not apply to appropriative water rights in this state.[54] This steadfastness to a “pure” system of prior appropriation has led instead to highly specific legislative enactments that modify the prior appropriation doctrine to accommodate additional interests. These enactments address developing concerns about the preservation of fisheries, wildlife, and aquatic habitat, as well as the promotion of recreational water use in the state. As public interest needs and values have developed in Colorado, adaptations to the prior appropriation system have effectively addressed these additional public interest concerns.[55] Unlike California, where the courts are responsible for implementing the public trust doctrine, the Colorado judiciary only applies prior appropriation as directed by the state constitution and the Colorado General Assembly.[56] In the ongoing legislative attempt to accommodate environmental and recreational interests under the Colorado Doctrine, collaborative discussions and engagement with multiple parties to creatively address water concerns have flourished.[57] As Justice Hobbs stated, “there are no aspects of the public interest that cannot be protected” within Colorado’s prior appropriation framework. Given the adaptive qualities of Colorado’s prior appropriation system, this will continue to be true.[58]


Sources:

[1] Dave Owen, The Mono Lake Case, The Public Trust Doctrine, and the Administrative State, 45 U.C. Davis L. Rev. 1099, 1107 (2012).

[2] Illinois Cent. R. Co. v. Illinois, 146 U.S. 387, 435 (1892); see also Danielle Spiegel, Can the Public Trust Doctrine Save Western Groundwater?, 18 N.Y.U. Envtl. L.J. 412, 428–29 (2010).

[3] See Safranek v. Town of Limon, 228 P.2d 975 (Colo. 1951).

[4] Colo. Const. art. XVI § 5; see also Stephen H. Leonhardt & Jessica J. Spuhler, The Public Trust Doctrine: What It Is, Where It Came From, And Why Colorado Does Not (And Should Not) Have One, 16 U. Denv. Water L. Rev. 47, 48–49 (2012).

[5] Colo. Const. art. XVI, § 6.

[6] Leonhardt & Spuhler, supra note 4, at 60.

[7] Gregory J. Hobbs, Jr. & Bennett W. Raley, Water Rights Protection in Water Quality Law, 60 U. Colo. L. Rev. 841, 879, 881–82 (1989). Justice Hobbs currently sits on the Colorado Supreme Court and is an outspoken critic of movements to adopt the public trust doctrine in Colorado.

[8] Id.; see also Joshua Mack, The Evolution of Colorado’s Recreational In-Channel Diversions, 10 U. Denv. Water L. Rev. 73, 76 (2006).

[9] Owen, supra note 1, at 1109–10 (discussing Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971)); see also Order After Hearing on Cross Motions for Judgment on the Pleadings at 9, Envtl. Law Found. v. State Water Resources Control Bd., No. 34-2010-80000583 (Cal. Super. Ct. Jul. 15, 2014).

[10] Colo. Rev. Stat. § 37-92-103(4) (2013).

[11] Mack, supra note 8, at 76, 79, 94.

[12] Id. at 76.

[13] Cynthia F. Covell, A Survey of State Instream Flow Programs in the Western United States, 1 U. Denv. Water L. Rev. 177, 184 (1998).

[14] Mack, supra note 8, at 75–76.

[15] Colo. Rev. Stat. § 37-92-103(4) (2014).

[16] Thomas Hicks, An Interpretation of the Internal Revenue Code and Treasury Regulations Supporting the Tax Deductibility of the Voluntary Charitable Contribution in Perpetuity of A Partial Interest in an Appropriative or Riparian Water, 17 Hastings W.-NW. J. Envtl. L. & Pol’y 93, 148–49 (2011) (discussing Colo. Rev. Stat. § 37-92-102(3)–(4)).

[17] Colo. Rev. Stat. § 37-92-102(3); see Covell, supra note 13, at 185.

[18] Id.

[19] Colo. Rev. Stat. § 37-92-103(4); Colo. River Water Conservation Dist. v. Colo. Water Conservation Bd., 594 P.2d 570, 573 (Colo. 1979); see Hicks, supra note 16, at 148–49.

[20] Colo. River Water Conservation Dist., 594 P.2d at 574.

[21] Id. at 573.

[22] Instream Flow Program, Colorado Water Conservation Board (“CWCB”), http://cwcb.state.co.us/ENVIRONMENT/INSTREAM-FLOW-PROGRAM/Pages/main.aspx (last visited March 7, 2015) [hereinafter Colorado Water Conservation Board].

[23] Owen, supra note 1, at 1109.

[24] Colorado Water Conservation Board, supra note 22.

[25] Colo. Rev. Stat. § 37-92-102(3) (2014); see Hicks, supra note 16, at 148.

[26] Id.

[27] Colorado Water Conservation Board, supra note 22.

[28] In re Application for Water Rights of Golden, No. 98CW448, 1 (Colo. Water Ct. Div. No. 1 2001), available at http://cdss.state.co.us/onlineTools/Pages/WaterRights.aspx (last visited Mar. 24, 2015).

[29] Id. at 4-5; see also Mack, supra note 8, at 77.

[30] In re Application for Water Rights of Golden. at 5; see also Mack, supra note 8, at 77.

[31] State Eng’r v. City of Golden, 69 P.3d 1027, 1028 (Colo. 2003).

[32] Mack, supra note 8, at 78–79.

[33] S.B. 01-216, 63rd Gen. Assemb., 1st Reg. Sess. (Colo. 2001); see also Mack, supra note 8, at 79.

[34] S.B. 01-216, 63rd Gen. Assemb., 1st Reg. Sess. (Colo. 2001) (current version at Colo. Rev. Stat. § 37-92-103(4)(b) (2014); see also Rebecca Abeln, Instream Flows, Recreation as Beneficial Use, and the Public Interest in Colorado Water Law, 8 U. Denv. Water L. Rev. 517, 523–24 (2005).

[35] Id.

[36] Colo. Rev. Stat. § 37-92-103(10.3).

[37] Abeln, supra note 34, at 527.

[38] Mack, supra note 8, at 81.

[39] Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 593 (Colo. 2005); see Mack, supra note 8, at 84–85.

[40] Upper Gunnison River Water Conservancy Dist., 109 P.3d at 589.

[41] Mack, supra note 8, at 84.

[42] Upper Gunnison River Water Conservancy Dist., 109 P.3d at 590.

[43] Id.

[44] Id. at 593; see Mack, supra note 8, at 85.

[45] Upper Gunnison River Water Conservancy Dist., 109 P.3d at 593.

[46] Reed D. Benson, “Adequate Progress,” or Rivers Left Behind? Developments in Colorado and Wyoming Instream Flow Laws Since 2000, 36 Envtl. L. 1283, 1301 (2006).

[47] Pending and Decreed RICDs, Colorado Water Conservation Board, http://cwcb.state.co.us/environment/recreational-in-channel-diversions/Pages/PendingandDecreedRICDs.aspx (last visited March 7, 2015).

[48] Abeln, supra note 34, at 533.

[49] Id. at 543.

[50] Id. at 533.

[51] Leonhardt & Spuhler, supra note 4, at 65–66.

[52] Abeln, supra note 34, at 537.

[53] Id. at 533.

[54] Leonhardt & Spuhler, supra note 4, at 49–50.

[55] Id. at 94.

[56] Abeln, supra note 34, at 541.

[57] Leonhardt & Spuhler, supra note 4, 95.

[58] Hobbs & Raley, supra note 7, at 874.


Editor’s Note: This piece is part of a four-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that studies the public trust doctrine, the stark contrast of its history and development in Colorado and California, and the implications of its extension to groundwater.

 

INTRODUCTION

A relic of antiquity, the public trust doctrine provides that “the state holds certain natural resources in trust for the benefit of its citizens.”[1] The state may provide for the private use of these resources, and allow private entities to obtain property rights in those resources, but the state must always ensure that the purposes of the trust are fulfilled.[2]

As a common law restraint, the doctrine prevents the diminishment of sovereign authority or the elimination public access to navigable waters and submerged lands.[3] Under its classic formulation in Illinois Central, the doctrine provides that the state is to hold title to the lands beneath navigable waters for the people, so that they may enjoy these waters free from the “interference of private parties.”[4] In Illinois Central, the United States Supreme Court explained that a state’s public trust duties can never be fully relinquished, likening obligations under the trust to a state’s immutable police powers.[5]

Although a state may not restrict the public trust doctrine, the doctrine may be expanded to meet the needs of an evolving community and the changing use of natural resources.[6] By the close of the twentieth century, many states had expanded the doctrine beyond its traditional focus on navigable waters to include lakes, tributaries, wetlands, and even groundwater.[7] In the 1970s, as the environmental movement rose to prominence, the doctrine took on additional significance in the world of legal academia.[8] Joseph Sax, a preeminent public trust scholar, was at the forefront of the move towards what has since been dubbed an “ecological” public trust doctrine.[9] Sax envisioned the doctrine as a tool by which judges could compel legislative consideration concerning actions harmful to trust resources.[10] By emphasizing judicial action, Sax believed that citizens could bypass legislatures and administrative agencies, which, according to Sax, had been corrupted by private agendas.[11]

In recent decades, there has been a continued debate over the applicability of the doctrine to the management of scarce western water. In Colorado, the public trust doctrine holds no legal authority.[12] Those arguing for the adoption of the doctrine, at least in reference to surface water and tributary groundwater, contend that the public trust doctrine should be applied more aggressively in the world of western water, and that the private property approach to water resources is inimical to solving issues of scarcity. By contrast, opponents caution against the enactment of a public trust doctrine, fearing the consequences such a wholesale adoption could have on water law in Colorado—a system that has been in place for more than a century. This article examines the history of the public trust doctrine in Colorado water law, discusses recent attempts to enact a public trust doctrine in the state, and briefly explains arguments for and against adoption of the doctrine within Colorado.

WESTERN WATER LAW

Water law in the American West is governed by the doctrine of prior appropriation, a legal system designed to facilitate the maximum use of a finite and scarce resource.[13] The doctrine of prior appropriation is characterized by the principle of “first in time, first in right”;[14] the first person to put a particular quantity of water to beneficial use acquires a paramount right to the continued use of that water.[15] Today, all western states adhere to some variant of the appropriative regime.[16]

In Colorado, the doctrine of appropriation inherited its purest form.[17] In response to the harsh realities faced by water users, the Colorado Constitution of 1876 declared that water from natural streams in the state will be “the property of the public,” and that the right to appropriate such water “for beneficial use in order of priority shall never be denied.”[18]   Central to the Colorado Doctrine is the principle that “priorities of right to the use of water are property rights.”[19] When a prospective appropriator diverts unappropriated water from a natural stream (or from tributary groundwater[20]) and puts it to a beneficial use, the private property right that results is a usufructuary right providing the appropriator with the right to use water that is owned by the state without corrupting its quality.[21] The resulting property right “is not an ownership right to molecules of water, but a right to divert a specified quantity of water for a specified ‘beneficial use with a specific priority relative to other users from the same source.’”[22] This right to use is a fully vested and alienable property right, which can be bought and sold without regard to the real property over which the water flows.[23] A priority right to the use of water, equivalent to a property right, is protected under the Colorado Constitution, meaning that no person can be deprived that right without due process of law.[24]

COLORADO AND THE PUBLIC TRUST DOCTRINE

Article XVI, Section 5 of the Colorado Constitution states that “[t]he water of every natural stream . . . within the state of Colorado, is hereby declared to be the property of the public . . . subject to appropriation.”[25] Yet despite this provision, Colorado has not adopted the public trust doctrine, and the public interest is not considered during water adjudication proceedings.[26] The Colorado Supreme Court has opined that an objection to a decree based on public interest is invalid is directly in conflict with the doctrine of prior appropriation.[27] Questions regarding the public interest, the court explained, are the province of the General Assembly and the electorate, and are not an appropriate matter for courts to consider.[28] The Colorado Constitution requires only “protection for appropriation, not protection from use or for preservation.”[29]

Furthermore, while other states have adopted less stringent definitions of navigability, the Colorado Supreme Court has not declared any stream in the state as navigable. “[T]he Colorado Supreme Court long ago stated ‘[t]he natural streams of the state are nonnavigable within its limits.’”[30] While the court has not had an opportunity to directly confront the issue, it seems unlikely that the court would declare any stream within the state as navigable.[31]

While the Colorado Supreme Court has systematically rejected any attempt to enact a statewide public trust regime,[32] voters in Colorado can amend the state constitution through ballot initiative.[33] Over the last twenty years, there has been a concerted effort to force courts to recognize a public trust in surface water and tributary groundwater through that process, and these arguments are evocative of a much larger movement in the West.[34] Of paramount importance to those arguing for a robust public trust doctrine is the principle that certain public interests in natural resources are immune from private alienation, and should be protected as a communal resource.[35] Proponents argue that many of the virtues of the public trust doctrine—its ability to spur on legislative action and influence the reallocation of natural resources through judicial intervention—make it an ideal tool for addressing environmental concerns.[36] Moreover, because the doctrine affects a wide variety of natural resources, its potential for environmental preservation is tremendous.[37]   Supporters argue that “the heightened protection of water resources that attends broader application of the public trust doctrine could help slow the over-appropriation of vital waters, reacquire instream flows of such waters, and increase water conservation efforts.”[38] Proponents further contend that the doctrine can help reverse trends of environmental degradation and ongoing water scarcity, while a continued reliance on an appropriative regime will only accelerate these issues, by catering to special interests.[39]

In 2012, Richard Hamilton and Philip Doe proposed Ballot Initiatives 3 and 45, seeking to amend the Colorado Constitution in an effort to enact Colorado’s own variant of the public trust doctrine.[40] Hamilton has been the architect behind a series of ballot initiatives seeking to amend Colorado’s constitution to impose the public trust doctrine on the state’s water resources.[41] Whereas Initiative 45 sought to expand the scope of public control over all of the state’s waters, Initiative 3 was designed specifically to enact a Colorado public trust doctrine by adding language to article XVI, section 5 of Colorado’s constitution.[42] The third section of Initiative 3 provided that “the public’s estate in water in Colorado has a legal authority superior to rules and terms of contracts or property law.”[43] A later provision of Initiative 3 relating to state-owned water rights stated that “[w]ater rights, held by the state of Colorado for government operations, shall be held in trust for the public by the State of Colorado with the State acting as the steward of the public’s water estate.”[44]

Although the Colorado Supreme Court upheld the ballot title and submission clause for both of the 2012 proposed initiatives, neither measure obtained the requisite number of signatures to qualify for the statewide ballot.[45] In the case for Initiative 45, Justice Gregory Hobbs warned in his dissenting opinion against enacting a public trust doctrine. According to Justice Hobbs, if a public trust in water were enacted, “it would prevent farmers, cities, families and businesses from making beneficial use of water rights that have vested in them over the past 150 years under Colorado’s statutes and Constitution.”[46] The public’s dominant water estate would also supersede the Colorado Water Conservation Board’s appropriations for instream flows and lake level water rights, which are designed to protect the environment and recreational uses.[47] Moreover, it would inhibit Colorado’s ability to use the full extent of its allocations under various interstate compacts, resulting in a windfall to neighboring states.[48] Justice Hobbs concluded that adopting a public trust in water would “drop what amounts to a nuclear bomb on Colorado water rights.”[49]

Notably, Doe, together with Barbara Mills-Bria, is proposing a new public trust initiative in 2015–2016; the Colorado Supreme Court affirmed the Ballot Title Board’s approval of the ballot title and submission clause for “Initiative #4” on March 12, 2015, allowing the initiative to move forward and seek the requisite number of signatures to make it onto the 2016 state ballot.[50]

In response to those extolling the public trust doctrine for its ability to confront environmental concerns, others caution that environmentalism was not a function of the traditional public trust doctrine, and that “[e]xtension of the public trust doctrine . . . is judicial sleight of hand; its rationale (far afield from its roots) is that environmental concerns deserve the same nature and level of protection as public access to water bodies historically used for navigation.”[51] Opponents of the public trust doctrine acknowledged that while many environmental concerns are well-founded, “they are public policy goals best resolved by legislation after public debate, considering the most appropriate solution for each resource, with due regard for property rights.”[52]

In Colorado, most of the apprehension surrounding the public trust doctrine has centered on the consequences such a profound change would have on the Colorado Doctrine. Colorado has relied upon its current approach to water rights for over 150 years.[53] An initiative such as the one Hamilton and Doe advanced in 2012 would inevitably result in a dramatic increase in litigation over current water rights in the state.[54]

Opponents of the doctrine argue that imposing the public trust doctrine would place current water owners and users in Colorado in a precarious position, as their rights would be subject to potential alteration or revocation under a trust regime.[55] In addition, because water rights in Colorado are legally recognized property rights, any forced transfer of these rights resulting from a public trust regime could subject the state to takings liability.[56] Furthermore, a broad adoption of the public trust doctrine in Colorado could create enormous uncertainty in the water market by making it impossible for a user to plan or finance a significant water project and interfering with the ability of users to transfer water rights.[57] Finally, implementing a public trust doctrine would result in significant costs to the state. A study surrounding a 1996 initiative “estimated the very uncertain net fiscal impacts of the initiative to local governments in Colorado could range from $2.28 to $3.36 billion.”[58]

CONCLUSION

It seems unlikely that the public trust doctrine will ever be judicially enacted in Colorado, and it is uncertain whether it will ever be enacted through voter referendum. Nevertheless, the debate surrounding the public trust doctrine surges on, and Colorado continues to feel the pressure of those arguing for its adoption. Elsewhere in the American West, many have turned to the doctrine as the means by which to solve water scarcity and attendant environmental issues. However, Colorado remains steadfast in its reliance on its strict appropriative regime, and ballot initiatives attempting to introduce the public trust doctrine to Colorado remain the subjects of fierce objection.


Sources:

[1] Dave Owen, The Mono Lake Case, The Public Trust Doctrine, and the Administrative State, 45 U.C. Davis L. Rev. 1099, 1107 (2012).

[2] Id.

[3] Stephen H. Leonhardt & Jessica J. Spuhler, The Public Trust Doctrine: What it Is, Where it Came From, and Why Colorado Does Not (And Should Not) Have One, 16 U. Denv. Water L. Rev. 47, 50 (2012).

[4] Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452 (1892).

[5] Id. at 453–55.

[6] Julia K. Bramley, Supreme Foresight: Judicial Takings, Regulatory Takings, and the Public Trust Doctrine, 38 B.C. Envtl. Aff. L. Rev. 445, 456 (2011).

[7] Id. at 456; see also Order After Hearing on Cross Motions for Judgment on the Pleadings, Envtl. Law Found. v. State Water Resources Control Bd., No. 34-2010-80000583 (Cal. Super. Ct. Jul. 15, 2014).

[8] Russell M. McGlothlin & Scott S. Slater, No Fictions Required: Assessing the Public Trust Doctrine in Pursuit of Balanced Water Management, 17 U. Denv. Water L. Rev. 53, 60 (2013).

[9] Id. at 61.

[10] Id. (citing Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 555–58 (1970)).

[11] Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 560 (1970)

[12] See generally People v. Emmert, 597 P.2d 1025 (Colo. 1979) (establishing that Colorado waters are bound under the rule of private ownership, thereby rendering the public trust doctrine irrelevant, if not inoperable).

[13] Gregory J. Hobbs, Jr., Colorado Water Law: An Historical Overview, 1 U. Denv. Water L. Rev. 1, 2 (1998).

[14] German Ditch & Reservoir Co. v. Platte Valley Irrigation Co., 178 P. 896, 896 (Colo. 1919).

[15] A. Dan Tarlock, Prior Appropriation: Rule, Principle, or Rhetoric?, 76 N.D. L. Rev. 881, 882 (2000).

[16] Danielle Spiegel, Can the Public Trust Doctrine Save Western Groundwater?, 18 N.Y.U. Envtl. L.J. 412, 419 (2010).

[17] See Colo. Const. art. XVI, § 5; Leonhardt & Spuhler, supra note 3, at 50.

[18] Hobbs, supra note 13, at 6 (quoting Colo. Const. art. XVI, §§ 5–7).

[19] Nichols v. McIntosh, 34 P. 278, 280 (Colo. 1893).

[20] See Safranek v. Town of Limon, 228 P.2d 975 (Colo. 1951) (stating Colorado’s presumption of groundwater tributariness).

[21] Navajo Dev. Co. v. Sanderson, 655 P.2d 1374, 1377 (1982).

[22] Stephen N. Bretsen, Rainwater Harvesting Under Colorado’s Prior Appropriation Doctrine: Property Rights and Takings, 22 Fordham Envtl. L. Rev. 159, 182 (2011) (quoting George Vranesh, Vranesh’s Colorado Water Law 8 (James N. Corbridge & Teresa A. Rice eds., rev. ed. 1999)).

[23] Navajo Dev. Co., 655 P.2d at 1378.

[24] Nichols, 34 P. at 280.

[25] Colo. Const. art. XVI, § 5.

[26] Hobbs, supra note 13, at 22.

[27] Bd. of Cnty. Comm’rs v. United States, 891 P.2d 952, 972–73 (Colo. 1995).

[28] Id.

[29] Leonhardt & Spuhler, supra note 3, at 64.

[30] John R. Hill, Jr., The “Right” to Float Through Private Property in Colorado: Dispelling the Myth, 4 U. Denv. Water L. Rev. 331, 342 (2001) (quoting In re German Ditch & Reservoir Co., 139 P. 2, 9 (Colo. 1913)).

[31] Bd. of Cnty. Comm’rs, 891 P.2d at 972 (“Conceptually, a public interest theory is in conflict with the doctrine of prior appropriation because a water court cannot, in the absence of statutory authority, deny a legitimate appropriation based on public policy”).

[32] Leonhardt & Spuhler, supra note 3, at 49.

[33] Colo. Const. art. XIX, § 2.

[34] See, e.g., Carol Necole Brown, Drinking from a Deep Well: The Public Trust Doctrine and Western Water Law, 34 Fla. St. U. L. Rev. 1 (2006).

[35] Spiegel, supra note 16, at 429.

[36] McGlothlin & Slater, supra note 8, at 61–62 (citing Sax, supra note 10, at 555–58).

[37] Harrison C. Dunning, The Public Trust: A Fundamental Doctrine of American Property Law, 19 Envtl. L. 515, 517 (1989).

[38] Brown, supra note 34, at 9.

[39] Id. at 3 (explaining that the prior appropriation doctrine “was and still is a doctrine that caters to special interests such as development, mining, and agriculture”).

[40] Leonhardt & Spuhler, supra note 3, at 84; Kemper v. Hamilton (In re Title, Ballot Title, and Submission Clause for #3), 274 P.3d 562 (Colo. 2012); Kemper v. Hamilton (In re Title, Ballot Title, and Submission Clause for #45) 274 P.3d 576 (Colo. 2012).

[41] Id. at 81.

[42] In re Title for #45, 274 P.3d at 578; In re Title for #3, 274 P.3d at 564.

[43] In re Title for #3, 274 P.3d at 568.

[44] Id. at 569 (emphasis added).

[45] Leonhardt & Spuhler, supra note 3, at 84.

[46] In re Title for #45, 274 P.3d at 586 (Hobbs, J., dissenting).

[47] Id. (Hobbs, J., dissenting).

[48] Id. (Hobbs, J., dissenting).

[49] Id. (Hobbs, J., dissenting).

[50] See Order of Court, Kemper v. Doe (In re Title, Ballot Title, and Submission Clause for Proposed Initiatives 2015–2016 #4), No. 15SA15 (Colo. Mar. 12, 2015), available at https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/initiatives/2015-16/15SA15/3-12-15%20court%20order.pdf.

[51] Leonhardt & Spuhler, supra note 3, at 90.

[52] Id.

[53] Id.

[54] Id., at 88.

[55] Id. at 90.

[56] Id. at 94

[57] Id. at 89.

[58] Id. at 90.


Editor’s Note: This piece is part of a four-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that studies the public trust doctrine, the stark contrast of its history and development in Colorado and California, and the implications of its extension to groundwater.

INTRODUCTION

When the Environmental Law Foundation filed suit in Environmental Law Foundation v. State Water Resources Control Board in 2011, California had no comprehensive state restrictions on groundwater pumping. While some isolated local groundwater management districts or agencies held authority to regulate groundwater extraction and courts had adjudicated groundwater rights in some regions, most groundwater users faced little or no limitation on pumping. This regulatory void no longer exists. In 2014 the California Legislature passed, and Governor Jerry Brown signed into law, the Sustainable Groundwater Management Act. This legislation institutes comprehensive state regulation of groundwater for the first time in California’s history.

The implications of ELF differ when considered alongside the Sustainable Groundwater Management Act. In this post, we contemplate two issues that the new groundwater legislation poses for applying the public trust doctrine to groundwater as in ELF. First, we discuss how the public trust doctrine’s limitations on groundwater differ from those that will be implemented in groundwater sustainability plans under the new groundwater law. And second, we discuss how the public trust doctrine as applied in ELF could shield the State of California in lawsuits claiming that the Sustainable Groundwater Management Act results in Fifth Amendment takings of private property. Before considering these two issues, however, we first present some background on existing groundwater rights in California and the new groundwater restrictions in the Sustainable Groundwater Management Act.

BACKGROUND ON CALIFORNIA WATER RIGHTS

In practice, California’s judicially-established groundwater rights system has resulted in few practical limitations on groundwater pumping in much of the State. When groundwater aquifers experience overdraft—a condition that occurs when more water is pumped than is replenished over many years—California’s groundwater rights system exclusively relies on lawsuits to adjudicate water rights and limit pumping. Outside of groundwater basins that have undergone court adjudications, groundwater pumping is largely unregulated. The Sustainable Groundwater Management Act is the first comprehensive state regulatory program for groundwater. This Act will be applied on top of three existing types of groundwater rights.

California’s correlative groundwater rights system results in three types of rights: overlying rights, appropriative rights, and prescriptive rights.
• Overlying rights allow landowners over an aquifer to extract groundwater and use it on their overlying land. These water rights are only limited to a quantity that is reasonable when compared to the demands of other overlying rights.
• Water users who use water on land that does not overlie the aquifer are appropriators; appropriators may use “surplus” water, or water in excess of current use that will not result in aquifer overdraft. As with other appropriative water rights, groundwater appropriators in California operate under the first-in-time, first-in-right system. However, appropriators may only legally use water above and beyond that required by overlying landowners—even if overlying landowners start pumping after the appropriator. If a basin is experiencing overdraft, no new appropriators may initiate pumping. Moreover, if overlying landowners begin using more water, lower priority appropriators must stop pumping.
• Prescriptive groundwater rights have also been established in the past in California. These rights are created by the open and adverse continuous use of groundwater in an overdrafted basin for the prescriptive period (five years in California). Other users in the basin must have notice of the overdraft conditions. Under these circumstances, an appropriator may gain a prescriptive right that is exercisable against any other groundwater right in the basin, including overlying rights.

BACKGROUND ON THE SUSTAINABLE GROUNDWATER MANAGEMENT ACT

Table 1: “Undesirable results” that must be avoided to achieve sustainability under California’s new groundwater law
(1) Chronic lowering of groundwater levels indicating a significant and unreasonable depletion of supply if continued over the planning and implementation horizon. Overdraft during a period of drought is not sufficient to establish a chronic lowering of groundwater levels if extractions and recharge are managed as necessary to ensure that reductions in groundwater levels or storage during a period of drought are offset by increases in groundwater levels or storage during other periods.
(2) Significant and unreasonable reduction of groundwater storage.
(3) Significant and unreasonable seawater intrusion.
(4) Significant and unreasonable degraded water quality, including the migration of contaminant plumes that impair water supplies.
(5) Significant and unreasonable land subsidence that substantially interferes with surface land uses.
(6) Surface water depletions that have significant and unreasonable adverse impacts on beneficial uses of the surface water.
California’s new groundwater law requires all groundwater basins that the Department of Water Resources designates as high- and medium-priority to achieve sustainable groundwater management. The law relies on local groundwater sustainability agencies to design plans that achieve this sustainability goal. These
plans must achieve sustainable groundwater management by avoiding the “undesirable results” listed in Table 1 over a 50-year time period. By January 31, 2020, local agencies in groundwater basins that experience critical overdraft conditions must adopt their plans. The remaining high- and medium-priority basins must adopt their plans by January 31, 2022. And by 2040, all high- and medium-priority basins must attain sustainable groundwater management. Moreover, the Act provides the State Water Resources Control Board backstop authority to develop and implement plans if a local agency fails to satisfy its sustainability objectives.

POSSIBLE DIFFERENCES BETWEEN GROUNDWATER LIMITS IMPOSED BY THE PUBLIC TRUST DOCTRINE AND THE SUSTAINABLE GROUNDWATER MANAGEMENT ACT

The specific nature of limits on groundwater extraction under the public trust doctrine and California’s new groundwater law remains unclear. No governmental agency in California has ever considered, much less satisfied, a public trust duty related to groundwater impacts on surface waters. Similarly, local agencies are only beginning to grapple with developing groundwater sustainability plans that comply with the Sustainable Groundwater Management Act. Nonetheless, the groundwater limitations that would be imposed by the public trust doctrine in ELF differ from those that the groundwater legislation requires.

First, California’s public trust doctrine does not specify particular levels of protection for the environment, navigation, or any other interest protected by the doctrine. Instead, it imposes a common law duty on governmental agencies to balance their impacts on the environment and navigation with other socially or economically beneficial purposes. As the California Supreme Court instructed in National Audubon Society v. Superior Court, before harming interests protected by the public trust doctrine, agencies must simply “consider the effect of such diversions upon interests protected by the public trust, and attempt, so far as feasible, to avoid or minimize any harm to those interests.”

Meanwhile, the Sustainable Groundwater Management Act sets more specific and enforceable requirements for groundwater management. This legislation does afford local agencies substantial flexibility in how they attain sustainable groundwater management. Nonetheless, these agencies or the State Water Resources Control Board must adopt groundwater plans that avoid the six statutorily specified “undesirable results.” Local agencies or the State Board might consider groundwater management options, such as importing water, that allow stressed basins to remain economically productive while also meeting the law’s sustainability goals. And courts and agencies might interpret the requirements to avoid only “significant and unreasonable” adverse impacts from groundwater extraction and use to allow agencies to balance interests. But—unlike the public trust doctrine—the Act does not leave agencies the option to recognize undesirable results from groundwater extraction and take no action to stop them.

The scope of waters protected by the public trust doctrine also differs from those protected by the recent groundwater legislation. First, the recent groundwater legislation applies to a broader set of water resources. The Sustainable Groundwater Management Act regulates impacts on groundwater aquifers, navigable and non-navigable surface waters, and lands that suffer from land subsidence. California’s public trust doctrine, although it may restrict groundwater pumping, is currently tethered to impacts on navigable waters. The ELF court’s decision rested on groundwater pumping dewatering a connected navigable water body—the Scott River—and harming navigation and fish. Another California case, Santa Teresa Citizen Action Group v. City of San Jose, held that the public trust doctrine “has no direct application to groundwater sources.” Nevertheless, the public trust doctrine might still have a broader geographic reach than the Sustainable Groundwater Management Act. While the public trust doctrine applies statewide, the groundwater law only requires sustainability in specified high- or medium-priority basins.

Practically speaking, the ELF decision may result in few changes beyond those that would occur under the groundwater law. Before the Legislature passed the Sustainable Groundwater Management Act, the ELF case seemed like it could lend local agencies the regulatory authority they lacked in statute to limit groundwater pumping. But the groundwater law gives local agencies these regulatory tools, and it already requires high- and medium-priority basins to avoid significant and adverse surface water depletions. It seems unlikely that the public trust doctrine, given its balancing of competing interests and its required link to navigable surface waters, would result in restrictions that the groundwater law would not already require. Professor Dave Owen’s 2012 study of the public trust doctrine’s impacts on surface water rights in California supports this conclusion. Professor Owen found that while the doctrine resulted in limitations on new surface water rights, it rarely limited existing rights. He also found that, because courts often view compliance with environmental statutes as fulfilling public trust duties, the doctrine rarely results in restrictions that would not have happened under those statutes. Consequently, the most substantial practical impact of the ELF decision may be the defense that it may provide against Fifth Amendment takings lawsuits for governmental agencies implementing the Sustainable Groundwater Management Act.

THE PUBLIC TRUST DOCTRINE AS A DEFENSE AGAINST TAKINGS CLAIMS

Once the Sustainable Groundwater Management Act goes into effect and local agencies begin imposing restrictions on groundwater withdrawals, unhappy water users may file takings claims under the theory that these restrictions constitute an unlawful confiscation of a vested property right. The Texas case Edwards Aquifer Authority v. Day provides a salient example. There, the Texas Supreme Court held that, despite the fact that the Legislature has empowered local agencies to limit groundwater withdrawals, agencies acting under this authority can still be subject to takings claims. California landowners may decide to initiate similar takings lawsuits once the new regulations are implemented.

If such claims are filed, California agencies may be able to use the public trust doctrine as a defense. As the U.S. Supreme Court articulated in Lucas v. South Carolina Coastal Council, state law may bar a Fifth Amendment takings claim where background principles of state law already limit or prohibit the property interest at issue. Applied here, the agencies’ argument would be that the state merely allowed use of groundwater before the Sustainable Groundwater Management Act went into effect, but that California’s public trust doctrine limits legal protection of that groundwater use.

Pursuant to National Audubon, the public trust doctrine in California bars any party from “claiming a vested right to divert waters once it becomes clear that such diversions harm the interests protected by the public trust.” Even when agencies balance other interests with the public trust and authorize activities harmful to trust interests, under National Audubon, these rights to conduct harmful activities remain non vested. Accordingly, under Lucas, they may not be property interests protected against takings. When coupled with the ELF principle—that groundwater pumping that affects navigable waterways is subject to the public trust doctrine—National Audubon gives agencies enforcing the Sustainable Groundwater Management Act a defense to takings claims.

However, this defense will not apply to all groundwater. As decided in Saint Teresa Citizen Action Group, the public trust doctrine does not apply directly to groundwater sources. Therefore, agencies will not be able to use the public trust doctrine as a defense to takings claims unless they can show that the groundwater being regulated has an impact on navigable waterways.

A recent case in Federal Claims Court in California, Casitas Municipal Water District v. United States, suggested that the federal government cannot use the public trust doctrine as a defense to a water rights takings claim. The case was resolved on appeal on other grounds without reaching the public trust doctrine defense. The trial court, however, held that because the public trust doctrine is a state doctrine, federal agencies could not claim it as a defense. The trial court also wrote that, even if the public trust doctrine applied in Casitas, diversionary interests outweighed the fishery preservation interests protected by the trust. Since state, and not federal, agencies will implement the Sustainable Groundwater Management Act, Casitas does not bar a public trust doctrine defense for the state agencies implementing it. The balancing of interests in Casitas also contradicts National Audubon’s instruction that no entity retains a vested right to perform activities that harm public trust interests.

Accordingly, a court evaluating a takings claim under the Sustainable Groundwater Management Act might hold that the public trust doctrine places a preexisting limitation on groundwater rights, and that this doctrine protects the state from takings claims.

 

This article can also be found on the Stanford Environmental Law Journal blog, here

 


Sources:

Casitas Mun. Water Dist. v. United States, 102 Fed. Cl. 443 (2011), aff’d, 708 F.3d 1340 (Fed. Cir. 2013).

Casitas Mun. Water Dist. v. United States, 76 Fed. Cl. 100 (2007), aff’d in part
and rev’d in part, 543 F.3d 1276 (Fed. Cir. 2008), reh’g en banc denied, 556 F.3d 1329
(Fed. Cir. 2009), dismissed on remand, 102 Fed. Cl. 443 (2011), aff’d, 708 F.3d 1340 (Fed. Cir. 2013).

Dave Owen, The Mono Lake Case, The Public Trust Doctrine, and the Administrative State, 45 U.C. DAVIS L. REV. 1099 (2012).

Edwards Aquifer Auth. v. Day, 369 S.W.3d 814 (Tex. 2012).

Envtl. Law Found. v. State Water Res. Control Bd., No. 34-2010-80000583 (Cal. Super. Ct July 15, 2014).

GARY W. SAWYERS, A PRIMER ON CALIFORNIA WATER RIGHTS, available at http://aic.ucdavis.edu/events/outlook05/Sawyer_primer.pdf.

John D. Echevarria, The Public Trust Doctrine as a Background Principles Defense in Takings Litigation, 45 U.C. DAVIS L. REV. 931 (2012).

Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 (1992).

Nat’l Audubon Soc’y v. Superior Court, 33 Cal. 3d 419 (Cal. 1983).

Santa Teresa Citizens Action Grp. v. City of San Jose, 114 Cal. App. 4th 689 (Cal. Ct. App. 2003).

Sustainable Groundwater Management Act (Assem. Bill No. 1739, Sen. Bill Nos. 1168, 1319 (2013-2014 Reg. Sess.).


Editor’s Note: This piece is part of a four-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that studies the public trust doctrine, the stark contrast of its history and development in Colorado and California, and the implications of its extension to groundwater.

Introduction

This piece is the beginning of a two-part series discussing the recent application of the public trust doctrine to groundwater withdrawals in the July 2014 case, Environmental Law Foundation v. State Water Resources Control Board (“ELF”).[1] The California public trust doctrine provides that the state, in its capacity as a sovereign, “owns all of its navigable waterways and the lands lying beneath them as a trustee of the public trust for the benefit of the people.”[2] As a trustee, the state has a fiduciary duty to consider possible environmental impacts and, when feasible, preserve these natural resources for public use. The ELF case held for the first time that California’s public trust doctrine includes environmental impacts on navigable waters from pumping groundwater. The first part of this series describes the public trust doctrine as applied in California and the ELF case. Then, because ELF could potentially limit some groundwater withdrawals, the second part of this series discusses ways this case interacts with California’s recent groundwater legislation, the Sustainable Groundwater Management Act.

Development of the Public Trust Doctrine in California

Origins of the public trust doctrine trace to the Roman Code of Justinian[3] and English common law, though the US Supreme Court first highlighted the doctrine in Illinois Central Railroad Co. v. Illinois.[4] As a matter of state common law, each state applies the public trust doctrine differently.[5] Hawaii, for example, has perhaps the most expansive public trust doctrine with regard to groundwater; all water in the state is protected by the public trust doctrine and this protection is reflected in the state’s constitution.[6] California recognizes two distinct public trust doctrines: a public trust duty derived from statute and the common law doctrine discussed in this series.

Historically, the public trust doctrine only protected public rights to use waterways for navigation, commerce, and fishing.[7] The uses protected by the public trust doctrine in California, however, have expanded. During the emergence of modern environmental law, Joseph Sax’s influential 1970 article, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, argued for an extended public trust doctrine that would encompass environmental protection.[8] Shortly thereafter, the California Supreme Court in Marks v. Whitney,[9] recognized “that one of the most important public trust uses . . . is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.”

The seminal California case on the public trust doctrine’s application to environmental protection is National Audubon Society v. Superior Court, which held that the public trust doctrine bestows on the state the affirmative duty to consider the impacts of government action on public trust resources. This affirmative duty includes “protect[ing] the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering the right of protection only in the rare cases when the abandonment of that right is consistent with the purposes of the trust.”[10] In practice, this duty requires the trustee to “consider the effects of [its action] upon interests protected by the public trust, and attempt, so far as feasible, to avoid or minimize any harm to those interests.”[11] This continuous duty led the California Supreme Court in National Audubon to require reconsideration of forty years of water diversions from Mono Lake because no responsible trustee had considered environmental impacts. At its core, the public trust duty requires the trustee to “exercise a continuous supervision . . . over the navigable waters of the state and the lands underlying those waters.”[12]

Applying the Public Trust Doctrine to Groundwater: Environmental Law Foundation v. State Water Resources Control Board 

In Environmental Law Foundation v. State Water Resources Control Board, the Superior Court of California applied National Audubon to hold that the public trust doctrine encompasses groundwater extraction that directly affects navigable waters. The court issued this holding in an order on the parties’ cross motions for judgment on the pleadings, meaning that this ruling came before the case proceeded to trial. In National Audubon, the California Supreme Court held that the public trust doctrine applied to diversions of water from non-navigable tributaries of Mono Lake—which itself is navigable—because those diversions affected Mono Lake’s water levels and harmed its public trust uses.[13] Thus, the court concluded that the scope of the public trust doctrine includes activities in non-navigable waters that harm downstream, navigable waters.[14]

The court in ELF v. SWRCB relied on this principle to apply the public trust doctrine to “groundwater so connected to a navigable river that its extraction harms trust uses of the river.”[15] The ELF case deals with groundwater impacts on the Scott River, a navigable waterway in Siskiyou County, California, used for boating and fishing and thus protected by the public trust doctrine.[16] The petitioners claimed that pumping of nearby groundwater decreased flows in the river.[17] In fact, they alleged the groundwater is so hydrologically connected to the Scott River that pumping groundwater at times decreases the river’s flow by the amount pumped.[18]

According to the facts alleged, decreased flows resulting from groundwater extraction harm the public trust uses of the Scott River. The river is an important coho salmon run, but groundwater pumping contributes to dewatering of the river in summer and fall, reducing it to a series of pools. This harms the river’s fish populations and also impacts its navigability and other recreational uses. Groundwater pumping in this case allegedly has the same result as diversion of Mono Lake’s tributaries did in National Audubon—decreased flows in a navigable waterway that harm its public trust uses. Thus, the court reasoned that under these facts the public trust doctrine applies to the extraction of groundwater near the Scott River.[19]

After the ELF court issued this order, the litigants asked the California Supreme Court to accept an expedited review of the order’s primary legal holding—that the public trust doctrine applies to groundwater impacts on navigable waters. The California Supreme Court, however, declined to expedite review. The ELF court issued its order in the context of cross motions from both parties for judgment on the pleadings—in other words, the court made its legal decision assuming the truth of the facts alleged by the Environmental Law Foundation. Presumably, the case will now go to trial in Sacramento County Superior Court, where the Environmental Law Foundation will have to prove as a factual matter that the groundwater pumping permitted by Siskiyou County does in fact harm environmental uses, navigation, or recreation on the Scott River.

Conclusion

California has one of the most expansive public trust doctrines in the United States. If the Superior Court’s holding in ELF stands, then California’s public trust doctrine also applies to groundwater pumping that impacts navigable waters. Historically, California has had no comprehensive state-level limitations on groundwater use. The ELF holding would provide more opportunities for environmental litigants to contest unchecked groundwater pumping.

When the Environmental Law Foundation filed suit in ELF v. SWRCB in 2011, California had no comprehensive state restrictions on groundwater pumping. In 2014, however, California enacted the Sustainable Groundwater Management Act. This legislation institutes comprehensive state regulation of groundwater for the first time in California’s history. The practical effects of ELF should therefore be considered in tandem with the provisions of this new legislation. The second part of this series dissects possible interactions between the public trust doctrine and the new groundwater law.

This article can also be found on the Stanford Environmental Law Journal blog, here


Sources:

* J.D. Candidate, Stanford Law School, expected 2016.

** J.D. Candidate, Stanford Law School, expected 2017; M.S. Candidate, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth Sciences, expected 2017.

[1] Envtl. Law Found. v. State Water Res. Control Bd., No. 34-2010-80000583 (Cal. Super. Ct July 15, 2014).

[2] Nat’l Audubon Soc’y v. Superior Court, 33 Cal. 3d 419, 434 (Cal. 1983) (internal quotation marks and citation omitted).

[3] See, e.g., J. Inst. 2.1.1 (“By the law of nature these things are common to all mankind-the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitationes, monuments, and buildings, which are not, like the sea, subject only to the law of nations. . . . All rivers and ports are public; hence the right of fishing in a port, or in rivers, is common to all men. . . . The public use of the seashore, too, is part of the law of nations, as is that of the sea itself.”).

[4] Ill. Cent. R.R. Co. v. Ill., 146 U.S. 387 (1892).

[5] See PPL Mont. v. Mont., 132 S. Ct. 1215, 1235 (2012) (clarifying that “the public trust doctrine remains a matter of state law” and that “the States retain residual power to determine the scope of the public trust over waters within their borders”).

[6] See Haw. Const. art. 11, §§ 1, 7; In re Water Use Permit Applications (Wai’ Hole Ditch), 9 P.3d 409 (Haw. 2000).

[7] Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 539 (1970).

[8] See id.

[9] Marks v. Whitney, 6 Cal. 3d 251, 259 (Cal. 1971).

[10] Nat’l Audubon Soc’y, 33 Cal. 3d 419, 440 (Cal. 1983).

[11] Id. at 425.

[12] Id.

[13] Envtl. Law Found., No. 34-2010-80000583, at 7-8 (Cal. Super. Ct July 15, 2014).

[14] Id.

[15] Id. at 7.

[16] Id. at 3.

[17] Id.

[18] Id.

[19] Id. at 9. But see Santa Teresa Citizens Action Grp. v. City of San Jose, 114 Cal. App. 4th 689, 709 (Cal. Ct. App. 2003) (holding that the public trust doctrine does not apply to groundwater itself, only groundwater impacts on navigable waters).


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law.

 

Vance v. Wolfe

“While the term ‘beneficial use’ is undefined in the Colorado Constitution, the 1969 Act defines it broadly as ‘the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made.’ Under the language of the 1969 Act, the CBM [Coalbed Methane] process ‘uses’ water – by extracting it from the ground and storing it in tanks – to ‘accomplish’ a particular ‘purpose’ – the release of methane gas. The extraction of water to facilitate CBM production is therefore a ‘beneficial use’ as defined in the 1969 Act.

Arguing against this interpretation, the Engineers and BP'[British Petroleum] assert that the use of the water during the CBM process cannot be a ‘beneficial’ one because the water is merely a nuisance. They stress that the goal of the CBM process is to capture the gas, not the water. The water, they continue, is simply an unwanted byproduct of the process. In sum, they question how the use of the water in this case can be termed ‘beneficial’ when they consider it to be a hindrance. . . . ‘[W]e disagree[.]

In fact, the presence of water and its subsequent extraction during CBM production is far more than an ‘inevitable result.’ Indeed, the presence and extraction of water are integral components to the entire CBM process. CBM producers rely on the presence of the water to hold the gas in place until the water can be removed and the gas captured. Without the presence and subsequent extraction of the water, CBM cannot be produced . . . While the Engineers and BP are correct that no Colorado case has specifically held that water used during CBM production is a beneficial use, this fact does not prevent us from finding such a beneficial use where our case law and the language of the 1969 Act so dictate.

As the water court noted, the Ranchers’ central concern is the protection of their vested senior water rights. We agree with the district court that our prior appropriation system exists to protect water rights holders. Here, the extraction, storage, and reinjection of water during CBM make the water inaccessible to other water rights holders such as the Ranchers. When the water is stored in surface tanks, a small quantity is lost to evaporation. At a later time, the water is typically reinjected, via underground injection control wells, into designated geologic formations that lie deeper than the aquifer from which the methane is produced. Consequently, ‘beneficial use’ also means use of water for a designated purpose – the result of which is to make the water inaccessible to other water rights holders.

We emphasize that determining the boundaries of ‘beneficial use’ requires careful case-by-case factual analysis and our holding today addresses the unique circumstances involved in CBM production. The definition of ‘beneficial use,’ however, is a ‘broad’ one, and we agree with the Ranchers that it is broad enough to cover the extraction of water to facilitate CBM production. In rendering our decision, we observe that the General Assembly may choose to make modifications to the statutes in light of our opinion.

In sum, while the production of oil and gas is subject to extensive regulation by COGCC [Colorado Oil and Gas Conservation Commission], it is also subject to the 1969 Act and the Ground Water Act. And, as noted above, we find that the extraction of water to facilitate CBM production is a beneficial use under those provisions.”

Vance v. Wolfe, 205 P.3d 1165, 1169 (2009) (case citations omitted).

Click here for a PDF of the entire article: 14 U. Denv. Water L. Rev. 159, 2010-2011

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1, 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111, 2000-2001.

View the third update to Colorado Water Law: 6 U. Denv. Water L. Rev. 116 2002-2003.

View the fourth update to Colorado Water Law: 8 U. Denv. Water L. Rev. 213, 2004-2005.

View the fifth update to Colorado Water Law: 10  U. D. Water L. Rev. 391, 2006-2007.

View the sixth update to Colorado Water Law: 13 U. Denv. Water L. Rev. 389, 2009-2010.


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law.

 

In re Tonko.

“The remedies and procedures in a district court right-of-way condemnation proceeding are substantially different from those of a water court application proceeding. The condemnation action involves issues such as necessity and valuation in determining the compensation award for a ditch or pipeline right-of-way needed for water transport in the exercise of a water right. The prerequisite for maintaining the condemnation action, pursuant to section 7 of article XVI of the Colorado Constitution and section 37-86-104(1), C.R.S. (2006), is an adjudicated conditional or absolute water right, but the adjudication of such a right is not within the district court’s jurisdiction. Adjudication of water use rights belongs to the water court.

The water court process involves a division engineer’s consultation report, a referee’s investigation, discovery, and a trial regarding contested issues of fact involving claimed water use rights. A water court applicant has incentives and the opportunity to try water use questions that a condemnation proceeding lacks.

The existence or non-existence of the Tonkos’ water use rights by reason of the 1908 decree and coterminous conveyance by Picco and Milano to Delisa of a 2/7ths interest in the Tatman Ditch water rights is not identical to the condemnation of a ditch right-of-way issues the district court had before it. The Tonkos’ immediate predecessors-in-interest did not have the same incentive or opportunity to litigate water use matters in the condemnation proceeding as they are provided by statute in the water court.

We conclude that the Tonkos’ predecessors-in-interest did not have a full and fair opportunity to litigate their water use rights in the condemnation action. The fourth element of issue preclusion is not satisfied.

The Tonkos argue that irrigation of their land is within the 1908 decree and that an undecreed invalid enlargement has not occurred in regard to the Delisa interest in the Tatman Ditch water rights. The Tonkos have asserted facts in support of this contention that are properly triable in the water court, not the district court.

Whether Mallow lawfully extinguished the Delisa Ditch right-of-way across his land and whether the Tonkos proceed with a condemnation action turn on the outcome of their change of water rights application. Because the Tonkos’ application to confirm their water use rights comes within the exclusive jurisdiction of the water court, it must be allowed to proceed.”

In re Tonko, 154 P.3d 397, 407 (Colo. 2007) (case citations omitted).

Click here for a PDF of the entire article: 13 U. Denv. Water L. Rev. 389, 2009-2010.

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1, 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111, 2000-2001.

View the third update to Colorado Water Law: 6 U. Denv. Water L. Rev. 116 2002-2003.

View the fourth update to Colorado Water Law: 8 U. Denv. Water L. Rev. 213, 2004-2005.

View the fifth update to Colorado Water Law: 10  U. D. Water L. Rev. 391, 2006-2007.


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law.

 

Fort Morgan Reservoir and Irrigation Co. v. Groundwater Appropriators of the South Platte River Basin, Inc.

“At the point at which a water rights case ceases to be a dispute handled informally by a water referee, and becomes litigation involving pre-trial discovery, sworn live testimony, and expert witnesses, it rests within the sound discretion of the trial court to determine whether, at the trial’s conclusion, there is a prevailing party entitled to costs. Since there is no statute or rule prohibiting the award of costs, and the unique nature of water right proceedings does not preclude the applicability of Rule 54(d), the award of costs necessarily rests in the sound discretion of the water court.” Fort Morgan Reservoir and Irrigation Co. v. Groundwater Appropriators of the South Platte River Basin, Inc., 85 P.3d 536, 541 (Colo. 2004).

United States of America v. Colorado State Engineer.

“The McCarran Amendment does not assert or imply that a state court would have jurisdiction to review the decision making process of federal entities, such as Interior or the Park Service, for compliance with federal law.

Indeed, such a conclusion would run contrary to the Administrative Procedure Act, the federal statute which establishes the practices and procedures followed by administrative agencies in rulemaking and adjudication. The language and legislative history of the APA’s judicial review provisions make clear that Congress intended to hold federal administrative agencies answerable for their conduct only in federal courts. 5 U.S.C. §§ 702, 706 (2004). Section 706 provides that a reviewing court shall ‘compel agency action unlawfully withheld or unreasonably delayed.’ 5 U.S.C. § 706(1). Section 702 defines the scope of that review: ‘A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute’ is entitled to judicial review and may bring suit against the agency. 5 U.S.C. § 702. However, the suit must be brought ‘in a court of the United States.’ Id. Thus, the waiver of sovereign immunity is expressly limited to federal court. The APA’s legislative history underscores this intent, explicitly stating that the United States will remain immune from suit in state courts.

Click here for a PDF of the entire article: 10 U. Denv. Water L. Rev. 391, 2006-2007.

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1, 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111, 2000-2001.

View the third update to Colorado Water Law: 6 U. Denv. Water L. Rev. 116 2002-2003.

View the fourth update to Colorado Water Law: 8 U. Denv. Water L. Rev. 213, 2004-2005.


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law and was published in the Water Law Review, Volume 6 in 2001. 

 

Simpson v. Bijou Irrigation Co.

“As a result of the [1969] Act’s stated policy of conjunctive use, wells were required to be integrated into the priority system, although unadjudicated wells in existence prior to 1969 were allowed to continue. The Act nevertheless encouraged the adjudication of existing wells by allowing well owners who filed an application by July 1, 1971, to receive a water decree with a priority dating back to their original appropriation date. The 1969 Act also introduced the concept of augmentation plans into the water law adjudication and administration scheme. Augmentation plans were the primary means provided by the Act for integrating groundwater into the state priority system…. ”  Simpson v. Bijou Irrigation Co., 69 P.3d 50, 60 (Colo. 2003) (citations and footnotes omitted).

“In response to the large number of augmentation plan applications which had been filed, in 1974 the General Assembly vested the State Engineer with the authority to grant temporary approval of augmentation plans. Significantly, however, a precondition to even temporary approval by the State Engineer was that the water user had an augmentation plan application pending in water court.

Click here for a PDF of the entire article: 8 U. Denv. Water L. Rev. 213, 2004-2005.

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1, 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111, 2000-2001.

View the third update to Colorado Water Law: 6 U. Denv. Water L. Rev. 116 2002-2003.