Editor’s Note: This piece is part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

Tribal Participation in the Sustainable Groundwater Management Act

In 2014, the California Legislature passed the Sustainable Groundwater Management Act (SGMA), which implements a comprehensive framework for the regulation of groundwater in California.[1]  SGMA relies on local agency leadership to achieve “sustainable groundwater management,” defined as the management and use of groundwater without an “undesirable result,” such as unreasonable reduction of groundwater storage, degradation of quality, seawater intrusion, or land subsidence.  Under the new law, certain high- and medium-priority basins will be required to adopt sustainable groundwater management plans the end of January 2022, and to attain sustainable groundwater management by 2040.[2]  While SGMA contains several provisions pertaining to tribes, it raises many more questions than it answers about how the new regulations will affect the more than one hundred federally recognized Indian tribes that reside in California.

Much of the uncertainty about SGMA’s impact on tribes and vice versa stems from the fact that federally recognized tribes are sovereign entities that often fall outside of state regulation; tribes have a government-to-government relationship with the U.S. federal government.  This means that, with regard to their federal water rights, federal tribes can effectively ignore SGMA if they so choose, which poses potential problems for the state and local sustainability agencies, because sustainably managing an aquifer generally requires managing the total amount of water removed from the aquifer by all users.  If a local sustainability agency cannot control—or doesn’t even know—the amount of groundwater used by a tribe, it will be more difficult for that agency to manage its groundwater basin.  As a result, SGMA seeks to pull federal tribes into local considerations of groundwater management and conservation; it provides that tribes “may voluntarily agree to participate in the preparation or administration of a groundwater sustainability plan” and are “eligible to participate fully in planning, financing, and management.”[3]  Still, the Act does not—and cannot—require that federally recognized tribes participate or in fact do anything at all.

The question of whether to participate in the SGMA process raises complex issues for tribes, and since the first deadlines under SGMA have not yet passed, the tribes appear to be in a “wait and see” mode—they are waiting to see how the process takes shape and plays out before deciding whether to participate.  To date, no tribe has fully begun participating in a local SGMA process of developing a sustainability agency or groundwater plan.  In part, this is likely the result of tribes’ concerns that participating in the SGMA process—a state law to which they are not subject—will impinge on their sovereignty.  Tribes may not want to be forced to report to the state; instead, they wish to preserve their government-to-government relationship at the federal level.  For similar reasons, tribes may be hesitant to share their groundwater data and knowledge about the hydrogeology of any aquifers underlying their reservation.  Moreover, even if tribes are interested in coordinating with local agencies or the state, they may lack institutionalized mechanisms for doing so, because historically many of them have coordinated with federal, rather than state, agencies.  Collaborating with local entities under a state law may be an uncomfortable posture and new procedure for tribes.  Thus, for those tribes who may be interested in participating, establishing a formal relationship between tribes and the state that doesn’t entail the state regulating tribes will be a major challenge moving forward.

But if tribes opt not to participate in the SGMA process, what does that mean for the basins that they overlie?  It could mean future havoc for basin plans if tribes assert federally reserved water rights after the basin plans are established.  SGMA guidance documents have appropriately emphasized how to contact and invite tribes to participate, but they have not named the risks of not including tribal participants.[4]   If a tribe asserts a federally reserved water right after a basin plan has been established, it may render the basin plan ineffective by bringing the total amount of groundwater extracted from the basin above the amount required to achieve “sustainable groundwater management.”

The potential for this situation to arise is the result of the nature of the water rights that federal tribes living on reservations may be able to claim.  Under the Winters doctrine, when Congress reserves land for an Indian reservation, Congress also reserves water rights for the tribes living on the reservation.[5]  Those tribes have a right to the amount of water necessary to fulfill the purposes for which the reservation was created, which can include the amount needed to farm all the “practically irrigable acreage” on the reservation.[6]  That “reserved” water right is a federal right and thus usually paramount to rights later perfected under state law.[7]  As a result, unlike holders of state water rights, tribes with federal water rights need not follow the reasonable and beneficial use doctrines that are part of the California water law regime for both groundwater and surface water rights.  Nor do they lose the water right from non-use—federally reserved water rights are not subject to abandonment, so tribes may come forward and assert a water right at any time—including potentially after a basin plan has been established under SGMA.

The concern that tribes will disrupt existing water allocation regimes by suddenly claiming or exercising their reserved water rights is not new, however.  Historically, tribal claims of federally reserved water rights were made with respect to surface water, which presented complex issues for the appropriative rights systems employed in western states like California because they affected the priority of existing rights.  Whereas priority date under the state system is based on the date when the appropriation was initiated, federally reserved water rights have a priority date that goes back at least as far as the date on which the reservation lands were set aside.[8]  As a result, a tribe claiming a federally reserved right to surface water today could bump down in priority all the rights established after the date on which the reservation was created.

Potential Interactions Between Federally Reserved Groundwater Rights and California’s Groundwater Regime

Similar problems arise in the context of groundwater, which recent case law, including the Eastern District of California’s decision in Agua Caliente, suggests can also be the subject of federally reserved water rights.[9]  California manages state groundwater rights under a water rights system that merges three different types of water rights—overlying, or correlative rights; appropriative rights; and prescriptive rights.[10]  The California Supreme Court first recognized correlative and appropriative rights to groundwater in 1903 in the landmark case Katz v. Walkinshaw.[11]  Under this groundwater rights regime, users whose land lies above an aquifer are vested with overlying rights, which allow groundwater extraction for use on the overlying land subject only to the limitation that the amount extracted is reasonable for use on the overlying parcels compared to the demands of other overlying users.[12]  Appropriative rights are established according to a first-in-time, first-in-right system and relate to groundwater extraction for use on property that does not overlie the aquifer.  These rights are junior to overlying rights—appropriators may only use “surplus” water, or water in excess of what is required by overlying users and that will not result in aquifer overdraft.[13]  Finally, prescriptive rights can be created by the open and adverse continuous use of groundwater in an overdrafted basin for the prescriptive period, which in California is five years.  Thus appropriative rights can shed their junior status as compared to overlying rights if they become prescriptive rights through this process.  How federally reserved rights to groundwater will interact with or fit into this complex state groundwater rights system remains largely an open question.

If the tribe’s land overlies a groundwater source, it may begin pumping under the correlative rights doctrine, making a claim to the correlative right of “reasonable use” under state law.[14]  Under that state law correlative right, if there is insufficient water to meet the demands of all overlying landowners, then each must reduce their use in relation to the other overlying landowners.[15]

If, however, the tribe claimed their groundwater right was a federally reserved right, three potential scenarios could occur.  First, if the date of creation of the tribe’s groundwater right preceded perfection of all other overlying groundwater rights, the tribe’s right would probably be absolute and superior, rather than correlative, to others.[16]  Granting a tribe its entire allotment in this scenario would likely follow the California Supreme Court’s rule for coordinating state surface water appropriative and riparian rights, which provides that appropriative rights supersede subsequent riparian rights and vice versa.[17]  Riparian surface water rights, like overlying groundwater rights, are correlative.[18]  As a result, the tribe’s federally reserved right could effectively preempt the state water rights of other users, thus making sustainable groundwater management more difficult, especially in times of scarcity or if the tribe’s water right is large relative to the total amount of water available in the basin.

In a second scenario, all overlying groundwater rights could predate a tribe’s reserved right.  Under this scenario, because federal reserved rights cannot interfere with prior state water rights,[19] the tribe’s right would likely be satisfied after the overlying rights, similar to a state appropriative groundwater right.

Finally, in a third scenario, the date of the creation of the tribe’s groundwater right could fall between the dates when other overlying groundwater rights in the basin vested.  In this scenario, three potential outcomes exist for coordinating overlying users’ rights with the tribe’s reserved right to groundwater: 1) the tribe’s right might be enjoyed in its entirety, preempting all subsequent overlying users, with all overlying users (including those predating the tribe’s reserved right) sharing in shortage, which means all overlying users reduce use proportionally if there is not enough water to meet their total demand; 2) because some overlying rights precede the tribe’s reserved right, the tribe’s right might be satisfied after all overlying rights; or 3) the tribe’s right might, together with other overlying state groundwater rights holders, reduce use proportionally in times of shortage.  This scenario—where a tribal reserved right is created subsequent to some overlying groundwater rights but before some others—mimics a scenario left unresolved in California surface water law when a surface water appropriative right is both predated by and followed by separate correlative, riparian rights to the same waterbody.  According to the authors of one water law casebook, in this surface water situation, “[i]f you cannot find a solution [to this quandary], do not worry.  Neither can we.  To our knowledge, moreover, no court has ever confronted this Gordian knot in a published opinion.  This issue typically does not arise because title to most private land in California was acquired before rival appropriative water rights were perfected.”[20]  Because tribes like the Agua Caliente Band of Cahuilla Indians, located in Southern California’s Coachella Valley, may hold reserved rights to groundwater with priority dates around the time when overlying groundwater rights first vested—the Agua Caliente’s Winters right to groundwater would date to 1876—this “Gordian knot” might become more common as tribal reserved rights to groundwater are increasingly recognized.[21]

In addition, tribes sometimes pump water from an aquifer and deliver it to lands that do not overlie that aquifer.  Under California groundwater law, this situation would make them state law appropriators.  If the tribe claimed a federal reserved right to groundwater in this distant aquifer, however, their reserved right would probably function like reserved rights to surface water: the tribe’s groundwater right would be fulfilled before appropriators with priority dates after the establishment of their reservation and after appropriators with earlier priority dates.[22]  Meanwhile, a tribal reserved right to groundwater that it uses on lands that do not overlie an aquifer might be fulfilled subsequent to all overlying groundwater rights, like state appropriative rights, or in conjunction with overlying groundwater rights as described above.

These complexities highlight the importance of aboriginal rights to groundwater—tribal reserved rights with priority dates of time immemorial.  Aboriginal groundwater rights with a priority date of time immemorial would almost certainly resolve the legal headaches described above, with tribal rights trumping all state groundwater rights.  Another post in this series discusses the aboriginal rights claim in the Agua Caliente case.

Ultimately, under either the correlative rights or the Winters doctrines, a federally recognized tribe on a reservation overlying an aquifer could claim a right to the groundwater at any time, even if it has not previously been pumping.  With a claim under the state correlative rights system, this would likely pose a fairly manageable problem for groundwater managers, since the tribe’s right would be limited by what is reasonable use in relation to other overlying users.  But an absolute, non-correlative, federally reserved claim to groundwater might frustrate basin plans and the established groundwater rights regime.  This is not to say that tribes are in any way at fault for unsustainable groundwater management in California; in fact, aquifer overdraft throughout the state is largely the result of historic non-enforcement of the groundwater rights regime except through litigation and adjudication in some basins.  Rather, the intersection of tribes’ federally reserved rights to groundwater and the California groundwater regime engenders extreme legal complexities and uncertainty that may have unintended consequences for groundwater management under SGMA.

Further uncertainty for basin managers might arise from questions like: if a reservation both overlies an aquifer and is crossed by surface water, may a tribe decide which water resource to make the subject of its federally reserved right (i.e., whether to claim a federally reserved right in the surface water or the groundwater)?  Can it make a claim to some of both the surface water and the groundwater?  If a reservation overlies two different aquifers, may a tribe claim a federally reserved right in one and a correlative right in the other?  Given that courts have only somewhat recently begun to find federally reserved rights in groundwater, these and many other questions about the interaction between California’s groundwater rights system and federally reserved groundwater rights remain unresolved.  In the end, it is in the interest of state and local agencies to attempt to overcome hurdles like tribes’ concerns about sovereignty in order to coordinate with them on groundwater to ensure that SGMA can be implemented effectively while respecting tribal water rights.

Elizabeth Vissers, J.D. Candidate, Stanford Law School, expected 2017; M.S. Student, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth, Energy & Environmental Sciences, expected 2017

Mary Rock,  J.D. Candidate, Stanford Law School, expected 2017; M.S. Student, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth, Energy & Environmental Sciences, expected 2017

Philip Womble, J.D., Stanford Law School, 2016; Ph.D. Candidate, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth, Energy & Environmental Sciences, expected 2019

Image: Shasta Dam, California.  Wikimedia Commons user Apaliwal, Creative Commons.

[1] 2014 Cal ALS 346, 2014 Cal SB 1168, 2014 Cal Stats. ch. 346 [hereinafter “Sustainable Groundwater Management Act” or “SGMA”].

[2] Philip Womble & Richard Griffin, Two Interactions Between California’s Sustainable Groundwater Management Act and the Public Trust Doctrine, Stan. Envtl. L.J. Blog (Apr. 29, 2015, 2:40 PM PST), http://journals.law.stanford.edu/stanford-environmental-law-journal-elj/blog/two-interactions-between-californias-sustainable-groundwater-management-act-and-public-trust#sthash.yaHnd6gB.dpuf.

[3] Sustainable Groundwater Management Act, ch. 346, §10720.3(c).

[4] See Kristin Dobbin, et al., Collaborating for Success: Stakeholder Engagement for Sustainable Groundwater Management Act Implementation (July 2015), http://www.waterboards.ca.gov/water_issues/programs/gmp/docs/local_asst/sgma_stakeholderengagement_whitepaper.pdf.

[5] Winters v. United States, 207 U.S. 564 (1908).

[6] See Arizona v. California, 530 U.S. 392 (2000).

[7] SGMA recognizes this.  Section 10720.3(d) provides that “federally reserved water rights to groundwater shall be respected in full.  In case of conflict between federal and state law in that adjudication or management, federal law shall prevail.”

[8] Winters v. United States, 207 U.S. 564 (1908); see United States v. Winans, 198 U.S. 371 (1905) (possibly supporting the notion that federally reserved rights could go back as far as time immemorial).

[9]  Cappaert v. United States, 426 U.S. 128 (1976); Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., No. EDCV 13-883-JGB, 2015 U.S. Dist. LEXIS 49998 (C.D. Cal. Mar. 20, 2015); see also Stephen V. Quesenberry et al., Tribal Strategies for Protecting And  Preserving Groundwater, 41 Wm. Mitchell L. Rev. 431, 453 & n.97 (2015) (commenting that “many . . . state and federal courts have found reserved rights in groundwater” and listing cases).

[10] Womble & Griffin, supra note 2.

[11] 141 Cal. 116 (1903).

[12] Womble & Griffin, supra note 2.

[13] Id.

[14] Wright v. Goleta Water District, 174 Cal. App. 3d 74 (relegating an unexercised right and making the newest pumper subordinate to others is inappropriate).  Tribes would be considered the same as any other overlying user, and could thus make a claim under state law to the amount of water that is reasonable compared to the demands of other overlying users.

[15] While this has historically not been enforced, the implementation of SGMA will hopefully ensure that it is enforced in the future.

[16] Quesenberry et al., supra note 9, at 456. See also Judith Royster, Winters in the East: Tribal Reserved Rights to Water in Riparian States, 25 Wm. & Mary Envtl. L. & Pol’y Rev. 169, 182 (2000) (stating that “[t]ribal [reserved] water rights are, therefore, paramount over subsequent state-law water rights.”).

[17] Haight v. Costanich, 184 Cal. 426 (1920).

[18] Pleasant Valley Canal Co. v. Borror, 72 Cal. Rptr. 2d 1 (Cal. App. 5th Dist. 1998).

[19] Royster, supra note 16, at 182.

[20] Barton H. Thompson et al., Legal Control of Water Resources 209 (5th ed. 2013).

[21] Like riparian surface water rights, overlying rights to groundwater would vest when a current landowner’s predecessor in interest originally received a land patent from the U.S. government. Many of these rights would date to the mid-19th century.  See Lux v. Haggin, 10 P.674, 725 (Cal. 1886).  Any reserved groundwater rights held by California Indian Rancherias that were created in 20th century would be accordingly be junior to most, if not all, overlying groundwater rights in this scenario.

[22] Royster, supra note 16, at 182.


Editor’s Note: This piece is a part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

Introduction

The United States Forest Service (“Forest Service”) manages 193 million acres of land in the United States, which comprise of 8.4 percent of the total land area, and most of which lies west of the Mississippi River.  In May 2014, the Forest Service announced a proposal to amend its internal polices.  The amendment would establish a comprehensive framework for groundwater management on National Forest System (“NFS”) lands.  Following publication in the Federal Registry, the agency received over 250 comments from interested parties, including state and city governments, tribal groups, and conservation organizations.  Some comment submissions supported the Forest Service’s policy changes.  Others expressed concern over its lack of authority to institute groundwater regulations, and its potential overreach into state rights.  More specifically, commenters argued that the proposed directive had the potential to usurp state groundwater management by what they perceived was a huge expansion of federal authority over reserved water rights.  Ultimately, the Forest Service withdrew its proposed directive, but it intends to revise and resubmit similar directives following additional internal and external consultation efforts.

The Groundwater Directive

The Forest Service does not have a comprehensive policy for managing groundwater resources on NFS lands.  Its current policies provide little internal direction and only address “agency inventory and monitoring activities for groundwater.”  The proposed groundwater directive, entitled “Groundwater Resource Management,” would have amended the Forest Service’s internal directives for Watershed and Air Management.

Substantively, the proposed directive would help the agency manage access to and utilization of groundwater resources under NFS lands.  Broadly speaking, it would establish policies and procedures to help the agency evaluate activities that potentially affect the quality and quantity of groundwater.  The agency identified four objectives and eight broad changes that would result from the new directive.  Among them, and relevant to this discussion, is the establishment of a framework for evaluating existing and proposed Forest Service uses and special use authorizations.  For any such uses, the agency would begin to require “appropriate water conservation measures” to avoid, minimize, or mitigate adverse effects to groundwater.  The agency would not authorize development projects or use of groundwater if such uses failed to “adequately protect resources.”  Further, the Federal Service would assume that all groundwater and surface water is “hydraulically connected, unless demonstrated otherwise.”

The Forest Service offered numerous reasons for its policy change; however, two underlying rationales stand out.  First, the agency concluded that groundwater has inextricable links to all other sources of water in a watershed, so it is therefore “appropriate to include groundwater” in its management of NFS lands in order to maintain the integrity of all water resources.  Second, the Forest Service asserted that there is a “need” to create a consistent policy that addresses both surface water and groundwater resources, and the directive responds to external rules and recommendations calling for such policies.

Legal Concerns

The agency published the proposed groundwater directive for public comment and tribal consultation.  It received hundreds of responses from interested parties.  Some, including conservation groups and those representing tribal interests, favored, or were otherwise neutral to, the proposed policy changes.  However, a majority of those submitting comments opposed the Forest Service’s groundwater directive for a variety reasons.  Predominantly, the agency itself recognized that “[s]tates and a number of other organizations raised concerns that the proposed directive would exceed the Agency’s authorities and infringe on State authorities to allocate water.”

To the first point the agency identified, many commenters remarked that the Forest Service lacked independent authority to regulate groundwater, even that located under NFS lands.  For instance, the Western Governors’ Association (“WGA”), which represents the governors of nineteen Western states, argued that states have exclusive authority over ground water in the United States.  Congress granted such authority to the agency in the Desert Land Act of 1877, and the Supreme Court confirmed it in California Oregon Power Co. v. Beaver Portland Cement Co.  Although the federal government retained some power by reserving rights to surface water on public lands, the WGA and others contended that the Forest Service did not have such a reserved right to groundwater—not in the 1897 Organic Administration Act and not in case law. The Forest Service, on the other hand, argued that the proposed directive did not grant the agency any new authorities.  Instead, it simply clarified the agency’s already existing authority that mandates its protection of NFS lands, which inherently includes the regulation of groundwater.  Thus, this argument makes it clear that the Forest Service believed that federal reserved water rights apply to groundwater, and that the proposed directive was arguably an explicit expansion of those federal rights.

Commenters also highlighted the second concern the agency identified, that the directive infringed on state authority over groundwater management.  Many argued that the proposed directive overreached its stated goal and appeared to create federal rights that inherently conflicted with conferred state rights to groundwater.  The Forest Service later argued that “[t]he proposed directives did not, and any future actions will not, infringe on State authority.” However, ambiguity in the policy nonetheless created tension.  Without clarity, for instance, the proposed directive as written could have allowed the Forest Service to place quantity-based restrictions on waters connected to NFS lands, even if a state has previously authorized a diversion and depletion.  Additionally, commenters argued, the Forest Service should not presume a hydrological connection between surface water and groundwater.  It should instead leave this decision to the laws or agreements of individual states.

Conclusion

In June 2015, the Forest Service withdrew its proposed groundwater directive.  Although the Forest Service withdrew its directive, it announced an intention to continue engaging in dialog, both internally and publically, to develop revised proposed directives on the issue.  Ultimately, if the Forest Service manages to establish policies involving access to or utilization of groundwater resources on NFS lands, even for the purpose of enhancing water quality, it may constitute a large expansion of federal reserved water rights.

Kobi Webb, J.D., University of Denver School of Law, 2016

Image: Greer Spring in Missouri’s Mark Twain National Forest.  Flickr user U.S. Department of Agriculture, Creative Commons.

SOURCES

By the Numbers, U.S. Forest Service, http://www.fs.fed.us/about-agency/newsroom/by-the-numbers (last updated Nov. 2013).

California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935).

Comments, Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560, https://www.regulations.gov/#!docketDetail;D=FS-2014-0001.

James Cefalo, Return of the Federal Non-Reserved Water Right, 10 U. Denv. L. Rev. 45, 49 (2006).

Letter from Anthony L. Francois, Attorney, Pacific Legal Foundation, to Forest Service (Oct. 3, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0129.

Letter from Barker Fariss, Ph.D, Tribal Historic Preservation Office, to the Forest Service (June 25, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0130.

Letter from City of Greely, to Forest Service (Sep. 29, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0230.

Letter from Eric Fry, Director of Regulatory Affairs, Peabody Energy, to Forest Service (Aug. 4, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0045.

Letter from Matthew H. Mead, Chairman, and Steve Bullock, Vice Chair, Western Governors’ Association, to the Forest Service at 2 (Mar. 17, 2016), http://www.westgov.org/images/Forest_Service_Directives_FINAL_002.pdf.

Letter from Rex Tilousi, Chairman, Havasupai Tribe, to the Forest Service (Oct. 2, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0193.

Letter from WGA, at 4; Letter from Clinton Ditch & Reservoir Company, the Forest Service at 4 (Aug. 21, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0227.

Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560, 79 Fed. Reg. 25816 (proposed May 4, 2014) (referring to FSM 2880, entitled “Geologic Resources, Hazards, and Services”).

Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560, 80 Fed. Reg. 35299 (June 19, 2015).

U.S. Forest Service, “Key and Common Questions and Answers Proposed Groundwater Directive FSM 2560,” Question 5 (June 30, 2014).

 


Editor’s Note: This piece is part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

This post explores the intersection of two topics that have historically been neglected in interstate water allocation, and in particular in interstate compacts: groundwater and tribal reserved rights to water.  Against the backdrop of the Agua Caliente case currently before the Ninth Circuit of the U.S. Court of Appeals, which raises the potential for broader recognition of tribal reserved rights to groundwater, this post focuses on interstate dimensions of recognizing such rights.  Interstate waters may be allocated in three ways: 1) an equitable apportionment decree from the U.S. Supreme Court; 2) legislation by the U.S. Congress that allocates water between states; or 3) interstate compacts.  This piece focuses on how tribal reserved rights have been dealt with under interstate compacts.

Federal Reserved Rights and Groundwater

The recognition of federally reserved Indian rights to surface water is well entrenched in water law jurisprudence, dating back to U.S. Supreme Court cases such as Winters in 1908.  As the Agua Caliente case before the Ninth Circuit highlights, tribal reserved rights to groundwater remain less established.  We first set out some background for tribal reserved rights claims to groundwater.  Then, we explore the interaction between federally reserved Indian and state rights to groundwater in the context of interstate allocations.

Even within individual states, the recognition of tribal groundwater claims may be problematic when addressing the allocation and governance of water rights.  While rights to surface water are well established, tribal rights to groundwater were typically not considered when initial allocations of water rights occurred.  Independent of tribal reserved rights, states have experienced difficulty in formulating regulatory frameworks to conjunctively manage both surface water and groundwater, particularly where different state water rights systems apply for surface water and groundwater.  The introduction of tribal reserved rights to groundwater, which may predate current claims, could have cascading effects on long-established uses of water.  The displacement of these claims and the unsettling of long-settled expectations of continued use pose an issue that we feel should be prophylactically addressed.

Interstate Allocations and Federal Reserved Rights

Inconveniently, aquifers do not always follow state lines.  In the case of transboundary aquifers, which extend across two or more states, it is unclear how federally reserved rights interact with the different states’ allocations from the aquifer.  At least two possible approaches exist: either 1) the federal reserved right takes priority, with the remaining groundwater allocated between the states; or 2) the federal allocation is taken from the allocation of the state in which the federal reserve is located.  The Supreme Court followed the latter approach in Arizona v. California, which allocated Colorado River water between these states.  In that case, the Special Master upheld the federal government’s reserved rights claim to water on behalf of various tribes, and the Special Master to the U.S. Supreme Court determined in his report that “all consumption of mainstream water within a state is to be charged to that state, regardless of who the user may be” (Rifkind, Special Master’s Report, at p. 247).  Thus, water used on Indian reservations would be chargeable to the state within which the use was made.  The Supreme Court accepted this analysis, but it did not explain why.

Nevertheless, while the limited jurisprudence on this issue would take reserved rights from the allocation of the state in which the reservation is located, Arizona v. California may not establish a general rule for the allocation of Indian water rights.  Importantly, it seems that all parties (including the United States) agreed to this approach, so that the merits of an alternative approach may not have been fully ventilated.  Further, any broadly applicable rule may be limited by the Special Master’s reliance on the specific legal framework in that case, including the 1928 Boulder Canyon Project Act and pre-existing federal contracts for the delivery of water in the region.

Of the 24 interstate compacts dealing with the allocation of interstate water resources listed on the National Center for Interstate Compacts database, only nine mention Indian rights, and none use the phrase “federally reserved rights.”  The compacts that do refer to Indian rights generally do not deal with this issue beyond a boilerplate acknowledgement that nothing in the compact “shall be construed as affecting the obligations of the United States of America to Indian tribes,” such as the Colorado River Compact of 1922 and the Klamath River Compact of 1957.

Unfortunately, should a tribal claim to the use of surface water or groundwater be made, this boilerplate language is not helpful in divining who is responsible for satisfying such rights.  One exception to the silence on this issue is the Snake River Compact, which explicitly states that reserved Indian rights are to be deducted from the state allotments in which the reservation is located.  Similarly, the California-Nevada Compact of 1969, which is not technically in force as it never gained U.S. Congressional approval, specifically notes that “there is allocated to Nevada for use on the Walker River Indian Reservation a maximum of 13,000 acre-feet per year.”

Charging tribal reserved rights to state allocations, however, is not the only possible approach.  In Montana v. Wyoming, the Special Master noted Montana’s position that because the Northern Cheyenne Tribe’s water rights predated the Yellowstone River Compact of 1950—they dated to as early as 1881—the Tribe’s rights should take priority over both states’ post-1950 rights.  In 1991, Montana and the Tribe had agreed to the Northern Cheyenne-Montana Compact, which assigned the Tribe a 20,000 acre-foot storage right with a priority date “equal to the senior-most right for stored water in the Tongue River Reservoir,” which is April 21, 1937 (Thompson, second interim report, at 158).  Wyoming, however, expressed its concern that Montana should not be able to “give away” water rights to the Tribe and then ask Wyoming to curtail its own rights to make up any shortfall for Montana users.  Because neither the Tribe nor the United States were parties to the case, the Special Master did not consider the case to be an appropriate venue to decide the nature of the Tribe’s water rights.  Accordingly, this question remains to be decided another day.

Meanwhile, interstate compacts similarly neglect groundwater; only six interstate compacts contain any mention of groundwater, and these references are fairly cursory.  In the Bear River Compact and Klamath River Compact, for instance, groundwater is mentioned to clarify that it falls outside the scope of the surface water apportionment in the Compacts.  By contrast, the Alabama-Coosa-Tallapoosa River Basin Compact provides that “[w]ater resources” or “waters” means “all surface waters and ground waters contained or otherwise originating within the ACT Basin,” signaling an intention that the Compact applies to both sources.  The Upper Niobrara River Compact of 1962 treads a middle ground, as it is confined to surface water apportionment, but expresses an intention to later apportion groundwater as soon as “adequate data on ground water of the basin are available.”  Studies have subsequently been undertaken in the Upper Niobrara Basin, but some fifty years later, the Compact has not been updated to encompass groundwater.  In the absence of express wording in the relevant compact, the Supreme Court has found that surface water allocations can be extended to groundwater; this appears to represent the default position.  For instance, in Kansas v. Nebraska, the Supreme Court found that, although the Republican River Compact did not address groundwater, it could be framed to prevent groundwater use within a state that affected interstate surface water flows.

Who Should be Responsible for Satisfying Federal Rights?

Accordingly, how should future courts, and states while negotiating compacts, approach the allocation of liability to satisfy federal reserved rights water claims? As adverted to above, the dominant theory and practice is that, unless provided otherwise, reserved rights shall be charged to state allocations.  The possible basis for this approach is the argument that a compact made between states and ratified by Congress estops Congress from later asserting a federal interest to modify the specific allocation identified in the compact.  This is because compacts are authorized by the Compact Clause in the U.S. Constitution and then approved by Congress, so they may enjoy some measure of quasi-constitutional status.  However, Professor A. Dan Tarlock suggests that this legal position may be outdated in light of cases suggesting that an interstate compact cannot limit Congressional exercise of its power to regulate interstate commerce (see, e.g., Pennsylvania v. Wheeling).  A related explanation is a pragmatic one founded in the very purpose of interstate compacts.  That is, states enter into compacts, surrendering some of their sovereignty, to secure certainty of supply.  Allowing later federal claims to modify this allocation would risk upsetting and reopening established interstate compacts.  Professor Tarlock suggests that the best approach is to treat Indian claims as “analogous to interstate waters allocated to another state by interstate compact” (Tarlock, at p. 653).  This would involve federal claims being satisfied out of the state’s allocation.  Within that framework, he suggests that federal reserved rights would usually take priority over state uses (see, e.g., Hinderlider v. La Plata & Cherry Creek Ditch Co.).

Conversely, other states have taken the position that satisfaction of Indian rights is a basin-wide responsibility.  There are compelling arguments in support of this approach; it may be unfair to charge one state with responsibility for satisfying the entirety of a federal reserved claim to water in a shared water basin because in some cases, the quantum of the potential federal right may be greater than the state’s entire allocation (as may be the case in Arizona), or federal claims may arise in relation to already over-allocated basins.  This would upset the affected state’s interests under the compact and drastically change the nature of the bargain struck.

On a principled level, prior federal reserved rights generally preempt all subsequent state claims.  Therefore it is misleading for a state to talk about “giving away” water rights, as Wyoming argued in Montana v. Wyoming, because the federal reserved right was never within the state’s power to give.  Moreover, the concern expressed by the Tribe in that case was that characterizing their reserved rights as falling within the state’s allocation could result in relegation of that right.  Although in that case, this concern rests largely on the terms of the Yellowstone River Compact itself, broader vindication of tribal rights may weigh in favor of a basin-wide response.  This issue arises when we consider the dynamics of tribal water settlements, which are usually negotiated between the federal government, tribes and the relevant state.  A state that is required to satisfy any tribal settlement with its own water allocation alone may be more likely to take a hard-nosed approach to negotiations than one that has greater resources available from the basin.  Moreover, because the McCarran Amendment of 1952 waives federal sovereign immunity for adjudication tribal reserved water rights, these proceedings often take place in state courts, which have traditionally been seen as less sympathetic to Indian interests than federal courts.  Therefore, any federally reserved allocation arguably should not factor into the quantity of water that is available for division between states.

This distinction may be easier to draw on paper than in practice, particularly when states allocate water before federal claims are officially recognized, because it assumes that the federal reserved right is both fixed and quantifiable.  This is not necessarily the case, particularly when states are negotiating compacts where inchoate federal claims exist that have not yet been advanced.  That is, in order to reserve water for potential federal claims, it would be necessary to first identify the scope of such claims.  Moreover, where less information exists to guide management of groundwater, it may not be feasible to preemptively identify how much water needs to be set aside to insure against all possible future claims.  This is by no means a straightforward undertaking, and it would most likely require engagement with relevant federal and tribal interests.  The risk of this approach is that quantifying federally reserved rights is in itself a vexed and lengthy process, and so interstate co-management of water basins could be delayed.

While these issues complicate the matter, we suggest they are not insurmountable.  The existence of federally recognized tribes and reservations overlying groundwater is easily ascertainable, so it may be that, where possible, states should proactively reserve water based on the “practicably irrigable acreage” standard.  Further, an approach that prioritizes federal reserved rights may well encourage earlier, more meaningful engagement with tribal stakeholders when states negotiate water allocations.  Ultimately, it is important that tribal water rights are not undermined through the willful failure of states to address these issues.

Conclusion

These issues will only become more contentious and problematic as demand for water continues to grow, and as a changing climate leads to increasingly drought and scarcity in some parts of the American Southwest.  Greater demands will be placed on already stressed aquifers as groundwater is increasingly looked to as a supplemental source.  States should look not only to collaboration with both tribal and private parties, but to other states in attempting to proactively address these inevitable problems.

Sarah Hoffman, L.L.M. Candidate, Stanford Law School, expected 2016

Miles Muller, J.D. Candidate, Stanford Law School, expected 2018

Image: Tahquitz Rock, part of the San Jacinto Mountains in Idyllwild, California.  Flickr user Don Graham, Creative Commons.

SOURCES

Cases / Compacts

Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., No. EDCV 13-883-JGB, 2015 U.S. Dist. LEXIS 49998 (C.D. Cal. Mar. 20, 2015).

Alabama-Coosa-Tallapoosa River Basin Compact, Pub. L. No. 105-105, 111 Stat. 2233 (1997).

Bear River Compact, Pub. L. No. 85-348, 72 Stat. 38 (1958).

California-Nevada Compact for Jurisdiction on Interstate Waters, Cal. Water Code § 5976 (West 2016).

Hinderlider v. La Plata & Cherry Creek Ditch Co., 304 U.S. 92 (1938).

Kansas v. Nebraska, 574 U.S. ___ (2015).

Klamath River Compact, 71 Stat. 497 (1957).

Pennsylvania v. Wheeling, 59 U.S. 421 (1856).

Snake River Compact, 64 Stat. 29 (1950).

Upper Niobrara River Compact of 1962, Pub. L. No. 91-52, 83 Stat. 86 (1969).

Winters v. United States, 207 U.S. 564 (1908).

McCarran Amendment of 1952, 43 U.S.C. § 666 (1988).

Secondary Sources

A. Dan Tarlock, One River, Three Sovereigns: Indian and Interstate Water Rights, 22 LAND & WATER L. REV. 631 (1987).

Barton Thompson, SECOND INTERIM REPORT OF THE SPECIAL MASTER, MONTANA V. WYOMING, Oct. Term 2014 (Dec. 29, 2014).

DOUGLAS S. KENNEY, NATURAL RES. LAW CTR., UNIV. OF COLO. SCH. OF LAW, WATER ALLOCATION COMPACTS IN THE WEST: AN OVERVIEW (2002).

John Leshy, Interstate Groundwater Resources: the Federal Role, 14 HASTINGS W.-NW. J. ENVTL. L. & POL’Y 1475 (2008).

National Center for Interstate Compacts, State Search, http://apps.csg.org/ncic/.

Simon Rifkind, REPORT OF THE SPECIAL MASTER, ARIZONA V. CALIFORNIA, Oct. Term 1960 (Dec. 5, 1960).

Robert T. Anderson, Indian Water Rights, Practical Reasoning, and Negotiated Settlements, 98 CAL. L. REV. 1133 (2010).


“These are some of the things wilderness can do for us. That is the reason we need to put into effect, for its preservation, some other principle that the principles of exploitation or “usefulness” or even recreation. We simply need that wild country available to us, even if we never do more than drive to its edge and look in. For it can be a means of reassuring ourselves of our sanity as creatures, a part of the geography of hope.”

Wallace Stegner, “Wilderness Letter”

HOW THE WEST WAS WON:

The settlement of the American West is predominantly a story of man’s ingenuity apropos of the water resource. Migration towards the Pacific in the nineteenth-century revealed many disheartening truths concerning the alien lands West of the Mississippi River, especially with regard to the availability of water. The land was abundant and full of economic promise, but the means by which to raise it were uncertain. Even so, our growing nation was hell-bent on conquering the West and, therefore, developing easy access to water became the objective.

Early estimations for successful settlement of the West, however, were dour at best. Famously, John Wesley Powell warned that “[m]any droughts will occur; many seasons in a long series will be fruitless; and it may be doubted whether, on the whole, agriculture will prove remunerative.” What Powell failed to consider, perhaps, is the tremendous potential of human inventiveness. By relying on luck, technological innovation, and an equal measure of reckless ambition, civilization was realized in the West. Nevertheless, the consequences that Powell envisioned continue to play out to this day. Many fear that soon we will reach a juncture where no amount of cleverness and scientific bravado can tame nature’s irregular hydrology. The possibility then becomes – with regard to water’s continued use and availability in the American West, has man’s reach finally exceeded his grasp?

MAKING THE CASE FOR NONUSE:

As the recent drought reaches new and frightening dimensions in much of the West, and especially in California, water users and state enforcers alike are scrambling to identify a method of addressing unprecedented shortages. In the western states where drought has not yet reached California-level magnitudes, its imminence proves equally disconcerting. For these states, such as Colorado, it is not a question of if, but when.

Amidst current efforts to reduce the threat of drought and shortage is a reinvigorated push for conservation, where nonuse of a water right has been given new import, to include legal recognition. In 2013, Colorado Governor John Hickenlooper called for the drafting of a new water plan that would analyze strategies for increased conservation and reuse of treated wastewater. The water plan, the first of its kind in Colorado, is partially designed to confront the drought head-on, and although the focus remains on divvying up appropriate amounts of water to meet growth projections across the Front Range, the preservation of healthy river systems has been encouraged with equal vigor. The operative effect of the plan is sure to be contentious, as concerns for conservation across the Western Slope clash with demands for increased water diversions to meet domestic needs and population growth in the Front Range.

Colorado’s emphasis on conservation in regards to combatting drought and attendant shortages represents a new philosophy amongst western states. Against this conservation backdrop, however, the dominant theory continues to focus on how to use or reuse available water most effectively to meet human demands. This ideal is ideologically anthropogenic, and little if any concern is given to the effects that the drought will have on the natural environment once it has run its course. In times of environmental uncertainty, the effects of a solely-anthropogenic agenda take on added significance, as man grapples with the preservation of a finite resource and the expectations for its use.

According to many, we are currently living through a water crisis in the West. Although many in Colorado take for granted water’s availability – and an uncharacteristically wet summer in 2015 did nothing to counteract this assumption – the reality of the situation is that in order to avoid California’s recent fate, residents must force conservation onto the agenda. Awareness of the risks is critical, and Colorado has encouraged the use of its imminent water plan (set to be released in December of 2015) as an educational tool for benefit of the public. Nevertheless, educating the public is no simple task, and championing the effectiveness of nonuse for conservation of a resource that is so freely accessible is no less difficult.

In the face of these uncertainties, a question arises: does non-use for purposes of conservation play any critical role in a region that is routinely paralyzed by the effects of drought? At microcosmic level, some water users in Colorado would answer that question in the affirmative, and early results are promising. In anticipation of the Colorado Water Conservation Board’s new water plan, water rights owners are distancing themselves from Colorado’s timeworn “Use It Or Lose It” rule, which has been at the heart of water law in the state ever since its inception. In a region where the effects of past droughts have had tremendous impacts on both the economic and cultural pulse of communities, the benefits of focusing more on conservation and less on use could be enormous. In fact, in 2013, Colorado’s General assembly passed a law allowing for an owner of water rights to leave water unused without fear of penalty or revocation of the water right, provided that the owner is enrolled in a conservation program and is granted local approval.

Benefitting by this safe harbor provision, drought-conscious ranch owners and other water rights holders in Grand County and Aspen are spearheading a new movement whereby users leave water in streams and tributaries, rather than abandoning their rights to any excess waters. In Colorado, long-standing doctrines governing the use of water were often incongruous to conservation efforts. After the passage of the 2013 law, a shift in perception is currently underway. Appropriators now face less legal obstacles when they decide to exercise restraint in exercising their water rights.

Recently in Glenwood Springs, the Colorado River basin roundtable (a collective of regional water-supply planners), have prioritized an ongoing process to identify methods by which water can be left in the heavily used Roaring Fork River watershed. Pitkin County went one step further by giving support to a $35,000 grant to help a Front Range nonprofit move forward with its plan to provide a pathway for water right holders to leave more of their allotted water rights in the Roaring Fork, made possible without penalty by the 2013 law. Unsurprisingly, the city of Aspen has given its blessing to both the grant and to any proposed effort to improve upon the health of the Roaring Fork. Although support at this level is no doubt promising, the overall success of these efforts hinges on the individual user’s willingness to forsake a portion of his or her allotted water rights in order to conserve river flows. To be sure, any reluctance is to be expected; but the reward of compensation without fear of penalty is certainly an enticing offer. Efforts already undertaken by ranchers in Aspen and Grand County, therefore, represent an encouraging start.

ENVIRONMENTAL BENEFITS:

Water consumers on the Front Range have certain expectations regarding the use of water. The manufactured urban environment – with its golf courses, green lawns, and public parks – provides residents with a much-needed respite from the detachment attendant to urban life. Unfortunately, the consequences these luxuries have on the natural environment, from which they extensively borrow, are too often ignored. As the Front Range continues to expand its base, the Western Slope bears a heavy burden in keeping its river ecosystems healthy. Within this framework, nonuse could be hugely influential, especially considering that the whole of Colorado’s Front Range depends entirely on healthy rivers in the Western Slope for much more than irrigation of golf courses.

The environmental benefits behind this method are easily understood: irrigators and other users will leave unused water they have rights to in the river, and the water saved will then serve to sustain river ecosystems. Convincing domestic users to cut back on their water consumption is difficult in its own right, but convincing water users that depend on their appropriative rights for their economic livelihood, is another thing entirely.

Across parts of Colorado’s Western Slope, there seems to be at the very least a middling interest among ranchers to cut back on the use of excess waters. If these users can be convinced to leave even a small portion of their waters unused, the aggregated benefits could be substantial. According to Amy Beatie, director of the Colorado Water Trust, “[o]n a stream, one cubic foot a second can make a big difference [with regard to environmental benefits].”

In this way, conservation via nonuse becomes a part of the discourse in how we tackle foreseeable drought problems, while simultaneously protecting the natural environment. Unfortunately, and notwithstanding the importance of water conservation, this discourse has been complicated by the fact that non-use is chiefly at odds with the central tenets of the appropriative regime, forming the very foundation of water rights in Colorado. Inevitably, allowing for a right to nonuse of the water amenity has been met with its fair share of criticism.

NONUSE AND THE COLORADO DOCTRINE:

At the heart of the law of water in Colorado is the concept of beneficial use. Once an appropriator puts water to a beneficial use, the right becomes absolute relative to junior appropriators. The term “beneficial” has proven to be remarkably flexible, and any attempt to apply a precise definition is stifled due to the evolution of economic, cultural, and social norms regarding water and its many uses. In recent decades, the idea of conservation has entered the fray regarding the ever-evolving definition of a beneficial use. Indeed, Colorado has already recognized the value of environmental conservation by including the protection of instream flows as a lawful beneficial use.

For a system that places such importance on the efficient use of water, it is not difficult to understand the precarious position a water rights holder places himself in with regard to other users in advocating for nonuse. The appropriative regime’s old-fashioned preference towards a “use-it-or-lose-it” rule, primitive as it may seem, still holds sway in water’s legal identity.

Traditionally, water rights holders in Colorado who do not use all the water entitled to them via their appropriative right faced the possibility of curtailment, and even outright legal abandonment of that right. Even today, when a water right holder uses less than an allotted maximum over a statutory period, any water not being diverted “goes up for grabs to other rights holders next in priority.” In essence, this system conceives a race-to-capture dynamic amongst users, whereby fellow users remain vigilant of any non-used portions of a specific watercourse, and then race to capture whatever is left unused or forgotten. Moreover, waste is fiercely prohibited in a prior appropriation system, and water used for any purpose beyond what was originally intended is prohibited. Any water right that is not continuously put to an active beneficial use can be lost.

CRITICISMS:

It comes as no surprise then that many water users find the new trend of conservation of water via nonuse to be repugnant. The importance of water in Colorado, and elsewhere in the West, goes far beyond its economic utility. Water holds important social, cultural, and recreational value for many diverse actors, and thus any action, legislative or otherwise, that is seen as curtailing any of these rights is immediately met with suspicion, and just as often this suspicion is joined by outrage. This is true of anything that diminishes a person’s long-standing rights, but in a region where water continues to be scarce, the backlash is even more emphatic.

In the present example of nonuse conservation in Aspen and Grand County, many competing users staunchly argue that senior rights must be reduced if the rights holder is not exercising his or her full allotment, in keeping with the principles of Colorado water law that have endured for more than a century. Along these same lines, critics argue that because a core tenet of the Colorado Doctrine holds that a water right holder is to use only an amount of water that is reasonably necessary to fulfill the intended beneficial use, any unused water should be released for appropriation by junior users, otherwise those unused portions constitute waste.

In response to these arguments, John McKenzie, director of the Ditch and Reservoir Company Alliance, explains that in the absence of the safe harbor provided by the 2013 law, agricultural irrigators are induced to flood fields with excess amounts of water out of fear that any unused portions will then be subject to abandonment.

In addition, residents in the more densely populated Front Range argue that they also have individual water needs, beyond those primary uses such as domestic consumption, that befit a certain quality of life. Representatives from Denver and Aurora argue that urbanites are entitled to a “reasonable residential experience,” claiming that the ability to have an irrigated lawn or golf course matches certain recreational amenities specific to mountain communities in terms of importance. One should not have to read too much in to this assertion to recognize the imbalance. The footprint left by the whitewater enthusiast or angler on a river ecosystem pales in comparison to the diversions wrought by the amusement park owner or golf course superintendent. Moreover, the former largely enjoys their recreational activity on nature’s own terms, giving as much as they take, and leaving a river in as pristine a condition as possible so that the activity may continue.

True enough, maintaining healthy urban environments is critical, but in balancing the urban with the natural, one must identify and respect the leverage the former has with regard to the latter in terms of environmental degradation. The equation is surely not equal on both sides, and the Western Slope should be allowed to take its own preventative measures concerning that most vital of natural resources. It is within this framework that nonuse could have a profound impact.

PARTING THOUGHTS:

Thus, what results from the example in Grand County and Aspen is a veritable catch-22; in an effort to ensure that water is not put to waste (as the appropriative regime defines the term “waste”), it is the exact opposite that occurs. Preventing economic waste perpetuates environmental waste and degradation. Profit maximization and the “use-it-or-lose-it” ideal has a pernicious effect on environmental conservation, and this is true even more so during times of drought. As Willow Creek rancher Witt Caruthers explains, “Colorado’s water system created an incentive to use our water even in times when it’s not absolutely necessary. When you’re under that pressure to use it or lose it, you’re almost forced to abuse it.”

We must remain practical when it comes to diverting and using water in times of shortage. Sustainability for future generations must not be ignored, nor should we remain tilted towards temporary solutions that keep festering wounds dormant. Moreover, conservation should not bend in the face of urban luxury. If we are to continue to survive in the arid regions of the West, we must give nature the respect it is due. Centuries after Howell pleaded his case for abstention, we have moved far beyond the point of no return.

For the ranchers and irrigators in Grand County and Aspen, and for the rest of us who occupy the fabled West, where water is so very important to the social fabric, the issue remains: how can we ensure that our waters are preserved not only in times of drought, but also for their own sake, and for the sake of all those both present and future that depend on water for their survival. To this we continue to search for an answer, but at least in the interim, we have become aware of the benefits of nonuse.


Sources:

John Wesley Powell, Report on the Lands of the Arid Region of the United States, With a More Detailed Account of the Lands of Utah, 1, 3 (1879) http://pubs.usgs.gov/unnumbered/70039240/report.pdf.

Bruce Finley, Colorado water plan draft goes to Hickenlooper to address shortfall, THE DENVER POST (Dec. 10, 2014).

John Stroud, Conservation, urban interests clash at water board meeting, POST INDEPENDENT (Sept. 11, 2014) http://www.postindependent.com/news/12984610-113/colorado-conservation-plan-river.

Jedidiah Brewer, Robert Glennon, Alan Ker and Gary Libecap, Transfering Water in the American West: 1875-2005, 40 U. Mich. J. L. Reform 1021, 1022-27 (2007).

With water, Coloradans are all in the same boat, THE DAILY SENTINEL (Sept. 13, 2015) http://www.gjsentinel.com/opinion/articles/with-water-coloradans-are-all-in-the-same-boat.

Bruce Finley, Colorado cuts into use-or-lose system that caused water waste, THE DENVER POST (June 16, 2015), http://www.denverpost.com/environment/ci_28319640/colorado-cuts-into-use-or-lose-system-that.

COLO. REV. STAT. ANN. § 37-92-305(c)(II)(A) (2015).

Brent Gardner-Smith, Colorado River roundtable prioritizes water projects, ASPEN JOURNALISM (March 30, 2015) http://aspenjournalism.org/2015/03/30/colorado-river-roundtable-prioritizes-water-projects/.

Collin Szewczyk. Project aims to restore Roaring Fork flow levels, ASPEN DAILY NEWS (Aug. 31, 2015) http://www.aspendailynews.com/section/home/168027.

Sarah F. Bates, Reed D. Benson, James N. Corbridge, Jr., David H. Getches, A. Dan Tarlock, WATER RESOURCE MANAGEMENT: A CASEBOOK IN LAW AND PUBLIC POLICY 134 (Foundation Press 7th ed. 2002).
Colo. Dept. of Nat. Resources, Instream Flow Program, http://cwcb.state.co.us/environment/instream-flow-program/Pages/main.aspx (last visited Sept. 13, 2015) (explaining that because of water scarcity and environmental characteristics, reasonable preservation of the natural environment in Colorado is paramount and, therefore, the Colorado Water Conservation Board distributes rights for nonconsumptive uses of water in an effort to preserve and maintain water levels and quality to a reasonable degree). Colorado cuts into use-or-lose system, http://www.denverpost.com/environment/ci_28319640/colorado-cuts-into-use-or-lose-system-that.

Gregory J. Hobbs, Jr., Bennett W. Raley, Water Rights Protection in Water Quality Law, 60 U. Colo. L. Rev. 841, 877 (1989).

Bruce Finley, Colorado cuts into use-or-lose system that caused water waste, THE DENVER POST (June 16, 2015), http://www.denverpost.com/environment/ci_28319640/colorado-cuts-into-use-or-lose-system-that.


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).