Big Splash in Water Law

The California Court of Appeal in San Francisco has rocked the state’s water community with a sweeping decision that ascribes vastly broadened powers to the five-member state Water Resources Control Board. The 103-page ruling of May 28 shatters many of the assumptions and traditions of California water law. Not even the experts are certain of the full effect of the ruling, but one referred to the decision as “remarkable.”

The immediate effect of the ruling is to greatly enhance the water board’s authority to ensure high water quality, specifically in the Sacramento-San Joaquin River Delta and San Francisco Bay. This could mean that the state Water Project and the federal Central Valley Project, which pump water out of the delta for use in the San Joaquin Valley and Southern California, will have to devote more of their supplies to maintenance of the delta and bay environment. The result might be less water for export to the south, and higher cost for that water.

Thus the instant winners in the case appear to be environmentalists and Northern Californians who oppose the diversion of additional water supplies to the south. The losers would be the customers of the big water projects: San Joaquin Valley farmers and Southern Californians who rely on such exports.

But that is only a narrow, superficial reading of the ruling written by Justice John T. Racanelli in the case involving delta water-quality standards set by the Water Resources Control Board in 1978. Throughout the decision, the justices emphasized the statewide public interest in maintaining adequate supplies of high-quality water and assuring the reasonable and beneficial use of that water. The Water Resources Control Board’s public-interest mandate can even supersede a vested water right steeped in the tradition of English common law, the court held.

The court said that the board must consider the effect of upstream diversions and uses of water--from the Sacramento River, for instance--on water quality in the delta and not just the damage caused by the pumps of the two projects within the delta. The board must assume “a global perspective” in setting delta water-quality standards, taking into account probable future water needs as well as historic and present uses of the water.

The court implied that, rather than holding the two projects solely responsible for protecting the water quality for the benefit of southern delta farmers, the board could act against farmers on the San Joaquin River to prevent polluted irrigation runoff from running into the delta.

The implications go on and on. While the ruling might result in a higher cost of water purchased by the Metropolitan Water District of Southern California from the state Water Project, it might also assure that it is freer of pollution. It also could affect plans of San Francisco Bay area cities to import additional water supplies from the Sierra Nevada via the delta, or around it. The court’s solid reaffirmation of the public-trust doctrine of water use could spell more trouble for the City of Los Angeles in importing water from the Mono Lake Basin of the eastern Sierra Nevada.

Time and again the court emphasized the board’s responsibility to assure beneficial use of water, not just to protect water rights. In one passage the court said: “We perceive no legal obstacle to the board’s determination that particular methods of use have become unreasonable by their deleterious effects upon water quality. Obviously, some accommodation must be reached concerning the major public interests at stake: the quality of valuable water resources and transport of adequate supplies for needs southward. The decision is essentially a policy judgment requiring a balancing of the competing public interests . . . .”

The marvel of the decision is that it is firmly rooted in existing law and court rulings, and may be virtually unassailable if appealed. The scope of the decision is achieved by taking the various disconnected threads and weaving them into a modern tapestry of water law. It may indeed enable the Water Resources Control Board to resolve some of the water disputes that have bitterly divided California for decades. Everyone could wind up a winner.