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 | 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 University | 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.

Los Angeles Department of Water & Power response to Mono Lake Committee Request for a Drought Emergency Regulation

California State Water Resources Control Board (SWRCB) | January 11th, 2023

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 in a Changing Climate

University of California, Los Angeles (UCLA) | March 17th, 2026

This summary report provides an accessible overview of the methods and takeaways from using the University of California, Los Angeles Mono Lake Model (UCLA-MLM) to study

This summary report provides an accessible overview of the methods and takeaways from using the University of California, Los Angeles Mono Lake Model (UCLA-MLM) to study Mono Lake’s water level for varying export and climate conditions. This is also intended to be a summary of the main report. This summary was created for policy makers, organizers, community advocates and members of the public.

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