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Applying the Public Trust Doctrine to River Protection
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Applying the Public Trust Doctrine to River Protection
Department of Water Resources | June 9, 2004...
Summary
The public trust is an ancient doctrine, stemming from Roman law. The Institutes of Justinian state that “by natural law, these things are...
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.

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

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Delta-Estuary California’s Inland Coast A Public Trust Report
California State Lands Commission (SLC) | May 1, 1991...
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Development of Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem
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Development of Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem
California State Water Resources Control Board | August 4, 2010...
Summary
Water Code section 85086 (See Appendix B), contained in the Delta Reform Act, was enacted as part of the comprehensive package of water...
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.

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

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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 12, 2012...
Summary
Forty years ago, in his seminal law review article on the public trust doctrine, Professor Joseph L. Sax suggested that “citizens seeking to...

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.

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Instream Flow Studies for the Protection of Public Trust Resources: A Prioritized Schedule and Estimate of Costs
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Instream Flow Studies for the Protection of Public Trust Resources: A Prioritized Schedule and Estimate of Costs
California State Water Resources Control Board | February 18, 2011...
Summary
Chapter 5 of the 2009-10 Seventh Extraordinary Session (SB X7 1, Simitian) directs the State Water Resources Control Board (State Water Board) to...
Chapter 5 of the 2009-10 Seventh Extraordinary Session (SB X7 1, Simitian) directs the State Water Resources Control Board (State Water Board) to submit to the Legislature, by December 31, 2010, a prioritized schedule and estimate of costs to complete instream flow studies for two categories of rivers and streams, by two specific deadlines:

1) high priority rivers and streams in the Delta watershed that were not covered in the Board’s “Final Report on Development of Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem” by 2012; and
2) all major rivers and streams outside the Sacramento River watershed by 2018.

The definition of the two stream categories is ambiguous. There are a number of tributaries that are both in the Delta watershed and outside the Sacramento River watershed, including the San Joaquin, Calaveras, Cosumnes, and Mokelumne Rivers. The State Water Board interprets the first category to mean all Delta and Sacramento River tributaries not covered under the Board’s “Final Report on Development of Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem.” Two additional schedules are prioritized for “all major rivers and streams outside the Sacramento River watershed.”

This report identifies 138 rivers and streams for instream flow studies. The total estimated cost to conduct scientific instream flow studies for the high priority rivers and streams tributary to the Delta is $32.46 million. The total estimated cost to conduct scientific instream flow studies for the high priority rivers and streams outside the Delta watershed is $107.25 million. The detailed schedules and costs are preceded with a few short discussions on the timelines given in the directive, the organization of schedules, the cost estimates for instream flow studies, and cost estimates for the next logical step: setting instream flow objectives.

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Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: Can two wrongs make it right?
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Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: Can two wrongs make it right?
Harvard Law | December 19, 2015...
Summary
Professor Joseph Sax’s environmental law scholarship has inspired generations of lawyers and legal scholars, including my very first law review publication in 1987,...
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.

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

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Maps, Models, and Mystery: Interconnected Groundwater and the Public Trust
American Bar Association (ABA) | August 10, 2019...
Summary
Walk into the office of any water law practitioner, anywhere, and you might think you made a wrong turn and walked into the office...
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.

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Measuring Cost-Effectiveness of Environmental Water Transactions
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Measuring Cost-Effectiveness of Environmental Water Transactions
Klamath Riverkeeper | August 4, 2016...
Summary
The diversion, storage and consumptive use of water in the western United States (US) has drastically altered streamflow, water quality and a raft...
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.*

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Mono Lake Basin Water Right Decision 1631

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Mono Lake Basin Water Right Decision 1631
California State Water Resources Control Board | September 28, 1994...
Summary
Decision and Order Amending Water Right Licenses to Establish Fishery Protection Flows in Streams Tributary to Mono Lake and to Protect Public Trust...
Decision and Order Amending Water Right Licenses to Establish Fishery Protection Flows in Streams Tributary to Mono Lake and to Protect Public Trust Resources at Mono Lake and in the Mono Lake Basin (Water Right Licenses 10191 and 10192, Applications 8042 and 8043, City of Los Angeles, Licensee)

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Navigability and its Consequences: State Title, Mineral Rights, and the Public Trust Doctrine

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Navigability and its Consequences: State Title, Mineral Rights, and the Public Trust Doctrine
Social Science Research Network (SSRN) | June 12, 2014...
Summary
“Navigability” and “navigable waters” are two of the most complex terms of art in American law because their meanings vary from context to...
“Navigability” and “navigable waters” are two of the most complex terms of art in American law because their meanings vary from context to context. A “navigable water” for purposes of the federal courts’ admiralty jurisdiction is not precisely the same thing as a “navigable water” for Commerce Clause purposes, and the Commerce Clause definition can be further refined in statute like the federal Clean Water Act. Other important federal law definitions of navigability govern state title to banks and beds of waterways and the scope of the federal navigation servitude. As this article will discuss, these tests overlap considerably, and attempts to distinguish them can cause confusion. State law definitions of “navigability” for state regulatory purposes complicate the multiple valences of “navigable water” even further.

This article provides an overview of some of the more important definitions of “navigability” and “navigable waters.” In general, labeling a waterway as “navigable” signals that either the federal government or the public acquires some right to the waterway in question. However, if the waterway also meets the “navigable water” test for state title, complicated legal relationships among the federal government, the relevant state, the general public, and private riparian landowners almost inevitably follow.

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