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James Getz
J.D., University of Maryland
June 11, 2015
In the context of California’s history-making drought — the worst in 1,200 years — experts at the 2015 California Water Law Symposium debated reasonable, beneficial, and wasteful uses of the state’s dwindling and precious water resources. Celebrating its eleventh year, this symposium, entitled “Wasted Water: Reasonable Use Law in 21st Century California,” was hosted by Golden Gate University School of Law in San Francisco on January 24 and saw participation from half a dozen law schools and experts from law firms, nonprofit organizations, government, and businesses across California.
What is reasonable use and what is not? What the legal history of nearly 130 years has made clearer, if not perfectly clear, is that like most things under the law, what is reasonable depends on the facts and circumstances. John Leshy, professor at the University of California Hastings College of Law, noted that the California Supreme Court made it clear that a use that at one time is considered beneficial can become wasteful under changed circumstances. In 1990, citing a case from 55 years earlier, the Court wrote: “What is a beneficial use, of course, depends upon the facts and circumstances of each case. What may be a reasonable beneficial use, where water is present in excess of all needs, would not be a reasonable beneficial use in an area of great scarcity and great need. What is a beneficial use at one time may, because of changed conditions, become a waste of water at a later time.”1
Of course, to apply this as law to facts and circumstances, one must know the definition of “reasonable” and “beneficial.” Conversely, one will therefore know what is wasteful. But how did we get to even the semi-clear, depends-on-the-circumstances definition we have today? And how can it be applied in an extreme and exceptional drought that is choking the state? Is Reasonable Use a doctrine (a legal principle widely adhered to) or is it actual law (a body of authoritative grounds of judicial and administrative action)?
Paul Kibel, a Golden Gate law professor who moderated a panel that included Professor Leshy and Harrison “Hap” Dunning, professor emeritus at UC Davis School of Law, noted that modern reasonable use law was kicked off by a public backlash against a 1926 California Supreme Court decision upholding the right of a riparian to use water without consideration of reasonableness of use.2 Within two years, the California Constitution had been amended to require reasonable use.3 Within a few more, the state Supreme Court declared that what is a reasonable use or method of use of water is a question of fact to be determined according to the circumstances in each particular case.4
The seeds of trouble had been planted four decades earlier in Lux v. Haggin,5 which brought together the conflict between riparian water rights holders and appropriative water rights holders for the first time. The main holding in Lux favored the riparians. Along with that determination came a holding that riparian reasonable use was expanded from “domestic” use to include agricultural and commercial use — as long as such use did not diminish the natural flow of the watercourse to other riparian land. Once the definition of reasonable and beneficial use was expanded, Professor Dunning said, later courts began to rein it in through findings of unreasonable use depending on factors such as seasonal variation, amount of land in use, amount of river frontage and comparative profits of the parties. Among the examples of unreasonable use — always depending upon the facts and circumstances — were a city’s prevention of saltwater intrusion,6 the use of flood waters to drown gophers, the use of water in a sand and gravel business,7 and allowing excessive tail water to flow into the Salton Sea and thereby flood another’s land.8
Over decades, the courts and the State Water Resources Control Board (SWRCB) refined the definitions of reasonable and beneficial. In 1971, in Erickson v. Queen Valley Ranch Co.,9 the court found that the huge losses of water in a diversion canal during conveyance violated the state constitution’s prohibition against waste and that the court has a duty under the constitution to prevent such waste.10 Professor Kibel also noted that four years later, the SWRCB, on its own authority, ranked the priority use of inland water for cooling at power plants: wastewater should be used first, followed by ocean water, brackish water, and inland fresh waters — including groundwater — as a last resort.11 Also in the seventies, a California appellate court found that a riparian owner’s diversion of water for frost protection, even though temporary, was an unreasonable use under the constitution.12 In another SWRCB decision a decade later, the courts found that the water board had the authority to restrict projects because their uses, even though once beneficial, had become unreasonable.13
Finally, in 2014, Gov. Jerry Brown signed into law the Sustainable Groundwater Management Act, which, consistent with the California Constitution, declares: “The people of the state have a primary interest in the protection, management, and reasonable beneficial use of the water resources of the state, both surface and underground, and that the integrated management of the state’s water resources is essential to meeting its water management goals.”14 Looking to the future use of reasonable use in groundwater, Professor Dunning said the board “would do well to look at serious overdraft situations” and think about its authority under the State Constitution and case law to address wells going dry, increasing pumping costs, and subsidence resulting from overdrafts.
Throughout its history, Kibel said, the water board has used reasonable and beneficial use as a shield to justify its actions from challengers. Professor Leshy noted that reasonable use is not just a policy goal. Government agencies can use it as a shield to justify their actions because a court will apply reasonable use in defining the property right to water. “When you’re wasting water, you don’t have a property right to do that,” Professor Leshy said. “One cannot, in California, gain a property right through waste of water. It’s a perfect defense to a [constitutional] takings claim.”
In more recent years, he said, plaintiffs have used reasonable and beneficial definitions as swords in seeking court decisions to impose reasonable use in the absence of a board action. Whether it is for alfalfa or city fountains, he said, one can argue, just as a judge stated 116 years ago, “Where water is so precious, it should not be used for mere matters of taste and fancy, while those who need it for useful purposes go without.”15
1 Imperial Irrigation Dist. v. State Water Resources Control Bd. (IID I), 275 Cal. Rptr. 250, 265 (Cal. Ct. App. 1990), quoting Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist., 45 P.2d 972 (Cal. 1935).
2 Heminghaus v. Southern California Edison Co., 200 Cal. 81 (1926).
3 Art. X, Sec. 2 (“The right to water … does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water.”) This sentence is also codified in Sec. 100 of the California Water Code (WC).
4 Gin S. Chow v. City of Santa Barbara, 217 Cal. 673, 706 (1933).
6 Town of Antioch v. Williams Irrigation District et al., 188 Cal. 451 (1922).
7 Joslin v. Marin Mun. Water Dist., 67 Cal.2d 132 (1967).
8 Elmore v. Imperial Irrigation Dist., 159 Cal.App.3d 188 (1984).
10 “Article XIV, section 3 declares the state’s policy to achieve maximum beneficial use of water and prevention of waste, unreasonable use and unreasonable method of use. It imposes upon trial courts an affirmative duty to fashion a decree which will simultaneously protect the paramount right of the established appropriator and prevent waste. (Citations omitted.) The findings and decree in this case fail to accomplish the second of these objectives. By holding that transmission losses amounting to five-sixths of the flow are reasonable and consistent with local custom, the court effectually placed the seal of judicial approval on what appears to be an inefficient and wasteful means of transmission. Such a holding a not in conformity with the demands of article XIV, section 3.”
11 Water Quality Control Policy on the Use and Disposal of Inland Waters Used for Powerplant Cooling,” SWRCB Res. 75-58 (Adopted June 19, 1975). “The loss of inland waters through evaporation in powerplant cooling facilities may be considered an unreasonable use of inland waters when general shortages occur.” Id., p. 3.
12 SWRCB v. Forni, 54 Cal.App.3d 743 (1976).
13 United States v. SWRCB,182 Cal.App.3d 82 (1986). “Here, the [SWRCB] determined that changed circumstances revealed in new information about the adverse effects of the project upon the Delta necessitated revised water quality standards. Accordingly, the [SWRCB] had the authority to modify the projects’ permits to curtail their use of water on the ground that the projects’ use and diversion of the water had become unreasonable.” Id. at 130.
15 City of Los Angeles v. Pomeroy, 124 Cal. 650 (1899). On the other hand, in Pomeroy, the court found that Los Angeles’ use of water in ponds and artificial lakes was not an unreasonable use.
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