Applying the Public Trust Doctrine to River Protection

Department of Water Resources | June 9th, 2004

The public trust is an ancient doctrine, stemming from Roman law. The Institutes of Justinian state that “by natural law, these things are common property of all: air,

The public trust is an ancient doctrine, stemming from Roman law. The Institutes of Justinian state that “by natural law, these things are common property of all: air, running water, the sea, and with it the shores of the sea.” In medieval England this notion was picked up and turned into a declaration that the shores of the sea are common to all and inalienable. The concept was adopted in the United States. As early as 1821, a New Jersey court held that the state could not convey into private ownership the public lands covered by tidal waters, and that any grant purporting to do so was void. These waters are vested in the sovereign state, the court held, not for its own use, but for the use of its citizens for “passing and repassing, navigation, fishing, fowling, sustenance, and all the other uses of the water and its products...” Arnold v. Mundy, 6 N.J.L. 1 (1821). Although the legislature may build dams, locks and bridges in the general interest of improving navigation, the court stated, “they may not consistently with the principles of the law of nature and the constitution of a well-ordered society, make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right.” That, said the Chief Justice, would be a grievance “which never could be long borne by a free people.” Id at 78. The public trust, like the ten commandments, has traditionally been phrased in terms of prohibition: “Thou shalt not abdicate the State’s control over its navigable waters.” More recently, however, this hoary common law creature, with roots in the civil laws of the Roman emperors, the English monarchs and the Spanish kings, has emerged from its long submerged home to impose new protections for the environment and new duties on governmental agencies.

Delta-Estuary California's Inland Coast A Public Trust Report

California State Lands Commission (SLC) | May 1st, 1991

Development of Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem

California State Water Resources Control Board | August 4th, 2010

Water Code section 85086 (See Appendix B), contained in the Delta Reform Act, was enacted as part of the comprehensive package of water legislation adopted in November 20

Water Code section 85086 (See Appendix B), contained in the Delta Reform Act, was enacted as part of the comprehensive package of water legislation adopted in November 2009. Water Code section 85086 requires the State Water Resources Control Board (State Water Board) to use the best available scientific information gathered as part of a public process conducted as an informational proceeding to develop new flow criteria for the Delta ecosystem to protect public trust resources. The purpose of the flow criteria is to inform planning decisions for the Delta Plan and the BDCP. The Legislature intended to establish an accelerated process to determine the instream flow needs of the Delta in order to facilitate the planning decisions required to meet the objectives of the Delta Plan. Accordingly, Water Code section 85086 requires the State Water Board to develop the flow criteria within nine months of enactment of the statute and to submit its flow criteria determinations to the Council within 30 days of their development. This report, required by Water Code section 85086(c) (2009 Delta Reform Act) in 2010, suggests the flows that would be needed in the Delta ecosystem if fishery protection was the sole purpose for which its waters were put to beneficial use. In keeping with the narrow focus of the legislation, this report only presents a technical assessment of flow and operational requirements to provide fishery protection under existing conditions.  

Effective Implementation of the Public Trust Doctrine in California Water Resources Decision-Making: A View From the Bench

University of California at Berkeley, School of Law | April 12th, 2012

Forty years ago, in his seminal law review article on the public trust doctrine, Professor Joseph L. Sax suggested that “citizens seeking to develop a comprehen

Forty years ago, in his seminal law review article on the public trust doctrine, Professor Joseph L. Sax suggested that “citizens seeking to develop a comprehensive legal approach to resource management problems” could use the public trust doctrine to obtain “effective judicial intervention” where “legislative response and administrative action” had been inconsistent. Of course, water is one of the natural resources to which the public trust doctrine is, and always has been, particularly applicable. And yet, it was not until ten years after Professor Sax published his article that Professor Ralph W. Johnson first predicted an impending “collision” between “[t]he public trust doctrine and the appropriative water rights system . . . in the West.” The imminence of that collision — in California at least — was due in no small part to the National Audubon Society’s then-pending suit against the Department of Water and Power of the City of Los Angeles (“L.A. Water and Power”) to limit diversions from the streams feeding Mono Lake.  That suit, which was a prime example of the sort of public interest litigation Professor Sax had advocated in his article, led to the California Supreme Court’s seminal decision in National Audubon, in which the court announced that “[t]he state has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect the public trust uses whenever feasible.” Today, twenty-eight years after the decision in National Audubon and more than forty years after Professor Sax’s article, what have we learned about the use of the public trust doctrine in water resources decision-making in California? Has it been an effective tool for obtaining judicial intervention in the decision-making process, as Professor Sax suggested it could be? And, more importantly, is judicial intervention the best way to effectuate and protect public trust values in the state’s water resources? Those are some of the questions I seek to answer in this Article.

Ensuring the Public Trust

University of California at Davis (UC Davis) | July 1st, 2012

The California Supreme Court's recognition of the public trust doctrine as an integral part of California's water rights system was one of the momentous events in the h

The California Supreme Court's recognition of the public trust doctrine as an integral part of California's water rights system was one of the momentous events in the history of California (if not United States) environmental policy.' The court looked back to the foundational purposes of the public trust to hold that there are limits to the sovereign power to privatize the rights to use the waters of the state, and it looked forward to conclude that prudent development and sustainable use of California's water resources require the state to retain authority to protect the public trust for the benefit of all Californians. The court also defined the public trust as an environmental baseline that both protects the traditional interests of navigation, commerce, and fisheries and embodies the contemporary scientific and popular understanding that there are ecological limits to the diversion and use of water for consumptive purposes. The lessons of National Audubon Society v. Superior Court2 are now a commonplace of water rights law, appearing not just in administrative orders and judicial opinions, but also in standard water rights terms, policy studies, and legislation.

Environmental Law Foundation, et al. Petitioners, v. State Water Resources Control Board, et al. Respondents

State of California (California) | July 15th, 2014

Environmental Law Foundation, et al. Plaintiffs and Respondents, v. State Water Resources Control Board, et al. Defendant, Cross-defendant and Respondent; County of Siskiyou, Defendant, Cross-complainant and Appellant

State of California (California) | August 29th, 2018

Click here to read Brian Gray, Senior Fellow at the Public Policy Institute of California Water Policy Center and a Professor Emeritus at UC Hastings, on this ruling

Click here to read Brian Gray, Senior Fellow at the Public Policy Institute of California Water Policy Center and a Professor Emeritus at UC Hastings, on this ruling and the potential ramifications under the Sustainable Groundwater Management Act.

Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: Can two wrongs make it right?

Harvard Law | December 19th, 2015

Professor Joseph Sax’s environmental law scholarship has inspired generations of lawyers and legal scholars, including my very first law review publication in 1987, whi

Professor Joseph Sax’s environmental law scholarship has inspired generations of lawyers and legal scholars, including my very first law review publication in 1987, which questioned the way that some public interest advocates were enlisting Sax’s seminal work on the public trust doctrine to champion environmentalist causes. In our last conversation not long before his passing, Joe asked me whether I still believed now what I wrote in 1987 with the benefit of almost three decades of hindsight. This essay expands on the answer I gave Joe that evening. The essay first acknowledges the significant ways in which I clearly fell short in anticipating trends in environmental law, and for that reason, I agree that my original thesis warrants revision—especially with regard to the role of the public trust doctrine as a viable basis for defeating regulatory takings challenges. Next, the Essay discusses how, by contrast, I would not change my thesis in other respects and why, for that reason, I question the efficacy of relying on atmospheric trust doctrine theories in litigation to address the pressing issue of global climate change. The Essay is especially critical of atmospheric trust doctrine advocacy that relies on unduly harsh and demeaning criticism of existing environmental law and the career public servants who strive for its effective implementation.

Maps, Models, and Mystery: Interconnected Groundwater and the Public Trust

American Bar Association (ABA) | August 10th, 2019

Walk into the office of any water law practitioner, anywhere, and you might think you made a wrong turn and walked into the office of your local cartographer. We are a p

Walk into the office of any water law practitioner, anywhere, and you might think you made a wrong turn and walked into the office of your local cartographer. We are a profession that depends on, and you might even say reveres, a good map. Rights to water flowing in surface streams are fundamentally defined by geography, and maps have long been a requirement of appropriation and essential evidence of riparian ownership. In turn, injury to a surface water right is determined by physics, as the topography of the land establishes the linear relation of impacts from other diversions, whether it be upstream (cause), or downstream (affected). In homage to these principles, some hydrologists will orient their maps top-to-bottom as upstream to downstream, rather than north to south. In our practice, gravity is our compass. Upending the convenient simplicity of rivers and streams flowing from mountaintop to ocean are alluvial and glacial valleys, in which unconsolidated sediment serve as giant sponges and blocks of fractured rock contain hidden stores of oftentimes ancient waters. Through these geologic features, hidden beneath the surface, water percolates, flows, and moves across the landscape. These subsurface waterbodies interconnect with surface streams and changes in the groundwater basin, whether due to drought or artificial extractions, and influence surface flow on a time scale ranging from minutes to centuries. To understand the relationship with any hope of precision, we need much more than a map; we need a hydrogeologist and a whole lot of data. All of this is by way of introducing two themes of emerging law in California that stand to influence trends beyond the state: (1) the legal relevance of interconnected groundwater to surface flows in protecting instream uses, and (2) recognition in the law of the need to understand and manage these interconnected waters.

Measuring Cost-Effectiveness of Environmental Water Transactions

Klamath Riverkeeper | August 4th, 2016

The diversion, storage and consumptive use of water in the western United States (US) has drastically altered streamflow, water quality and a raft of ecological, social a

The diversion, storage and consumptive use of water in the western United States (US) has drastically altered streamflow, water quality and a raft of ecological, social and economic goods and services. Over the last fifty years, western states have begun to address this problem through a range of approaches. Water quality regulations, endangered species protections, application of the public trust doctrine to water allocations and other regulatory approaches reflect an effort to prevent further degradation of streamflow and associated values. For example, in Oregon, minimum streamflow requirements created in the 1950s were converted into full-fledged instream water rights in the 1980s and 1990s to limit further appropriations of water for out-of-stream use. Unfortunately, as junior (or low) priority rights, these rights do not serve to restore flow to already dewatered streams. In other cases, both large and small, regulatory enforcement has led to real improvements in water for the environment. In California, the protections afforded to Mono Lake water levels and the re-dedication of contract water to environmental uses under the Central Valley Project Improvement Act, are but two examples. However, the controversy, costs and lengthy time span of dedicating water to the environment through litigation and regulatory approaches are unappealing to some conservation groups, particularly those that prefer to collaborate and purchase water rather than litigate to achieve streamflow restoration. An alternative approach to meet streamflow restoration needs is to proactively negotiate in the “water market” for the acquisition of existing out-of-stream rights or for changes in water use and management in order to benefit the environment. These transactions result in “environmental flows,” including the dedication or protection of water instream or the provision of water to Roughly 80% of California’s developed water supply is used for agricultural irrigation.*