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.*

Mono Lake Basin Water Right Decision 1631

California State Water Resources Control Board (SWRCB) | September 28th, 1994

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 Lak

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)  

Mono Lake Committee request for an emergency action to protect Mono Lake and its public trust resources

California State Water Resources Control Board (SWRCB) | December 16th, 2022

Mono Lake Kutzadika’a Tribe support for Emergency Action at Mono Lake Due to Low Lake Level

California State Water Resources Control Board (SWRCB) | December 22nd, 2022

Mono Lake: background, Decision 1631, current conditions, ongoing developments

California State Water Resources Control Board (SWRCB) | January 1st, 2023

National Audubon Society v. Superior Court of Alpine County

Supreme Court of California | February 17th, 1983

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

Social Science Research Network (SSRN) | June 12th, 2014

“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

“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.

Notice of Entry of Order for Implementation of Preliminary Injunction – Case No. Bcv-22-103220-Gap, Bring Back the Kern et al v. City of Bakersfield et al

Superior Court of California, County of Kern | November 14th, 2023

Petition for 2023 Drought Emergency Regulation or Other Emergency Action to Protect Nesting Birds, Water Quality, and other Public Trust Resources at Mono Lake

Mono Lake Committee | December 16th, 2022