A Law Can’t Do It All

Legislation signed into law by Gov. George Deukmejian will not, in itself, resolve the long battle over the City of Los Angeles’ water diversions from the Mono Lake Basin on the east side of the Sierra Nevada 300 miles from Los Angeles.

Before that can happen, the city Department of Water and Power and the private nonprofit Mono Lake Committee must find other sources of water to replace the supply that the city would relinquish in order to halt the 50-year drain on the unique lake. Then the parties must apply to the state for the use of a $60-million fund to buy the alternate supplies, or perhaps finance conservation projects.

The city and the Mono Lake Committee, in fact, have been working with the Environmental Defense Fund for some time to find other water, possibly excess irrigation water in California’s San Joaquin Valley. The legislation by Assemblymen Phillip Isenberg (D-Sacramento) and William P. Baker (R-Danville) formalizes that process in state law.

But the two bills do something far more important: Through state legislation, they begin to implement the public trust doctrine of water use in California, which was recognized for the first time by the California Supreme Court in a 1983 case involving Mono Lake brought by the National Audubon Society and the Mono Lake Committee. Until that time, Los Angeles’ right to divert water from Mono Basin streams that naturally flow into Mono Lake was considered virtually inviolate under the old Western water doctrine of appropriative rights. Under this rule, the first person to divert the water obtained the water right.

But the Supreme Court said such water rights were not absolute. The court held that Los Angeles’ right had to be balanced by public trust interests such as water needed to maintain fish, wildlife and recreational uses of the lake and the streams that feed it. Meanwhile, the city has lost other suits that restrict Mono stream diversions in order to protect the lake.

The public trust doctrine was the driving force behind the Isenberg-Baker laws, along with common sense and the reality of public concern for the environment. And the legislation carried the idea one logical step further: If this water is taken from the city in the interest of the public, the public should compensate the city--or if not all the public, then a substantial segment of it.

The Mono Lake fund was created with money owed to the state by contractors of the State Water Project who serve a majority of California’s 28 million residents. The $65 million will offset Los Angeles’ loss only for a relatively few years, but another important principle has been established.

There are two ways to look at the Mono Lake situation. On one hand, it has seemed to take forever to get Los Angeles, the courts and Legislature to halt an environmental wrong. On the other hand, California water law has undergone a radical revolution in the direction of environmental protection in just six short years. In the case of Mono Lake, there is considerable truth in both statements.