Academic journal article Texas Law Review

A Plan to Restore the Public Trust Uses of Rivers and Creeks

Academic journal article Texas Law Review

A Plan to Restore the Public Trust Uses of Rivers and Creeks

Article excerpt

The Mono Lake Cases1 amended Los Angeles Department of Water and Power's (LADWP) appropriative water rights to divert substantially all flows in Rush and Lee Vining Creeks, tributaries to Mono Lake in the eastern Sierra mountains. The State of California Water Resources Control Board (SWRCB) permitted the rights in 1940, and licensed (thus perfecting) them in 1974 under the California Water Code.2 Nonetheless, relying primarily on the public trust doctrine, which became common law incident to statehood in 1850, the cases decided between 1983 and 1994 held that LADWP did not have a vested right to continue diversions that unnecessarily harm the public trust uses of navigation, fishing, commerce, and environmental quality.3 Specifically, diversions had already lowered the lake by 45 vertical feet; reduced the creeks to dry washes except for intermittent floods; substantially impaired the ecological values of these waters for migratory waterfowl, other fish, and wildlife; and impaired recreation and associated economic benefits for the rural communities.4 The cases further held that the State has the authority under the public trust doctrine to amend perfected rights as necessary to prevent, and indeed reverse, harm to the trust uses.5 Pursuant to water right amendments that ended these cases, LADWP will reduce its historical diversions for municipal water supply by two-thirds in order to raise the lake by twenty vertical feet and then maintain that level to achieve measurable objectives the SWRCB established to restore the ecological functionality of the creeks.6

For the first time in California, the cases integrated the public trust doctrine into the regulatory system for appropriative water rights.7 As a result, the cases are rightly understood to be a revolutionary development in water law.8 Subsequent cases, law review articles, treatises, and other symposia have exhaustively analyzed their history and their fundamental holding that the State, as trustee to the people, has the authority to condition individual water rights to comply with the doctrine.9 This Article asks the simple question: Given that authority, does the State have a duty to systematically review and amend existing rights as necessary to restore and protect public trust waters?10

This Article appears in a symposium largely concerned with the voluntary transfer of water rights from one developmental use to another. "Bank" is the essential word in the symposium title: How will such market transactions complement traditional regulation to help ensure adequate water supply? This Article uses the concept of banking in a different sense. It concludes that navigable waters and their uses for navigation, commerce, and fishing are public properties that the State, as trustee, holds in trust for the benefit of the people. The State may permit development (such as LADWP's appropriations from Rush and Lee Vining Creeks), but not to the extent of unnecessary harm to the public trust. This is conceptually similar to a private trustee's duties to the beneficiary of a monetary trust-loyalty, prudent management, and effective control of the trust assets.11 This Article asks: How will the State affirmatively apply the doctrine to remedy the substantial harms to trust uses of waters (other than Lee Vining and Rush Creeks) that were authorized before the Mono Lake Cases and that continue today?

Since 1983, the public trust doctrine has been applied reactively in California when new water right applications are filed12 or when proceedings are necessary to comply with the federal Clean Water Act, Endangered Species Act, or other statutes.13 These applications, while important, are localized. The SWRCB has not retroactively applied the doctrine to the vast majority of the 13,000 appropriative rights14 that it had issued or perfected before 1983,15 or the more than 8,000 pre-1914 appropriative, riparian, and pueblo rights.16 The California Water Code Division 2(17) implements the water rights system; it does not have a rule or procedure that requires periodic review of these rights for compliance with the public trust doctrine. …

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