California Water Law Conference Presentation

Report
California Reasonable Use Law:
Lessons from the Russian River Frost
Protection Litigation
PAUL STANTON KIBEL
Golden Gate University School of Law / Water and Power Law Group
Panel on The Conflict Between Vineyards and Salmon
November 2014 CLE Conference on California Water Law
San Francisco, California
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California Reasonable Use Law
Paul Stanton Kibel
2014 California Court of Appeal Decision in Light v. SWRCB
Foundation of California Reasonable Use Law
►
Article X, Section 2 of the California Constitution (“The right to
water…does not and shall not extent to the waste or unreasonable use or
unreasonable method of use or unreasonable method of diversion of
water.”)
►
Section 100 of the California Water Code (“The right to water…does not
and shall not extend to the waste or unreasonable use or unreasonable
method of use or unreasonable method of diversion of water.”)
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California Reasonable Use Law
Paul Stanton Kibel
2014 California Court of Appeal Decision in Light v. SWRCB
Application of California Reasonable Use Law to Riparian Water Rights
►
1926 California Supreme Court Decision in Herminghaus (impetus for
1928 Constitutional Amendment on reasonable use of water) involved
riparian water rights
►
Petitioner in 1976 California Court of Appeal Decision in Forni (upholding
application of California reasonable use law to frost protection
diversions) involved challenge by riparian water rights holder
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California Reasonable Use Law
Paul Stanton Kibel
2014 California Court of Appeal Decision in Light v. SWRCB
Causal Link Between Salmon Kill-Offs and Frost Protection Diversions
►
Per Forni, SWRCB not required to establish causal link with salmon
mortality to regulate simultaneous frost protection diversions that
significantly reduce instream flow pursuant to California reasonable use
law
►
NMFS investigations and analysis found simultaneous frost protection
diversions in 2008 contributed to contemporaneous salmon fish kill
(NMFS expertise on salmon issues as substantial evidence to support
determination of causal link)
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California Reasonable Use Law
Paul Stanton Kibel
2014 California Court of Appeal Decision in Light v. SWRCB
CEQA Compliance and Analysis of Impacts of
“Non-Frost Protection” Diversions on Russian River Salmon
SWRCB regulation (proposed CEQA action) narrowly tailored to address particular
fisheries effects in Russian River watershed of simultaneous diversions for frost
protection rather than more general fishery effects of all diversions in the
watershed
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California Reasonable Use Law
Paul Stanton Kibel
Pre-Light Reliance on California Reasonable Use Law to
Regulate Agricultural Water Use to Protect Instream Resources
1986 Racanelli Decision in United States v. SWRCB (182 Cal.App.3d 82)
“Here, the [SWRCB] determined that changed circumstances revealed in new
information about the adverse effects of the project upon the Delta necessitated
revised water quality standards. Accordingly, the [SWRCB] had the authority to
modify the projects’ permits to curtail their use of water on the ground that the
projects’ use and diversion of the water had become unreasonable.” Id. at 130.
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California Reasonable Use Law
Paul Stanton Kibel
Pre-Light Reliance on California Reasonable Use Law to
Regulate Agricultural Water Use to Protect Instream Resources
1980 Decision on Alternate Point of Diversion in Environmental Defense Fund v.
East Bay Municipal Utility District (26 Cal.3d 183)
California Supreme Court holds that SWRCB and California Courts have
concurrent jurisdiction to prevent unreasonable methods of water diversion, and
on this basis grants petitioner leave to amend complaint to allege proposed point
of diversion was unreasonable given evidence that alternative point of diversion
reduced impact on fisheries
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California Reasonable Use Law
Paul Stanton Kibel
Pre-Light Reliance on California Reasonable Use Law to
Regulate Agricultural Water Use to Protect Instream Resources
1976 California Court of Appeal Decision in SWRCB v. Forni (54 Cal.App.3d 743(
“…the claim that respondent’s direct diversion of water constitutes an…
unreasonable method of use of water is predicated on the very premises that the
direct pumping results in a great temporary scarcity of water during the crucial
frost period…The direct diversion of water for frost protection in the crucial period
constitutes an…unreasonable method of use of water within the purview of the
Constitution and statutory provisions.”
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California Reasonable Use Law
Paul Stanton Kibel
Holding in Light as Precedent for Expanded Use of California Reasonable Use Law
2011 Delta Watermaster Report to SWRCB on
The Reasonable Use Doctrine & Agricultural Water Use Efficiency
“The underlying premise of this report is that the inefficient use of water is an
unreasonable use of water. Accordingly, the Reasonable Use Doctrine is available
prospectively to prevent general practices of inefficient water use…”
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California Reasonable Use Law
Paul Stanton Kibel
Holding in Light as Precedent for Expanded Use of California Reasonable Use Law
California’s Sustainable Groundwater Management Act (Enacted August 2014)
►
Uncodified Findings (“The people of the state have a primary interest in
the protection, management and reasonable beneficial use of the water
resources of the state, both surface and underground…”)
►
Section 10720.1(b) on Legislative Intent: (“To enhance local management
of groundwater consistent with…Section 2 of Article X of the California
Constitution.”)
►
Section 10720.5(a) (“Groundwater management pursuant to this part shall
be consistent with Section 2 of Article X of the California Constitution.”
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California Reasonable Use Law
Paul Stanton Kibel
Holding in Light as Precedent for Expanded Use of California Reasonable Use Law
California’s July 2014 Drought Emergency Regulations
23 CCR §878.1(c) (“Given the essential nature of water in sustaining human life,
use even under a more senior right for any other purpose when domestic and
municipal supplies required for minimum health and safety needs cannot be met is
a waste and unreasonable use under the California Constitution, Article X, § 2.”)
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California Reasonable Use Law
Paul Stanton Kibel
Final Thoughts on the “Terms” of the Reasonable Use Debate
California Reasonable Use Doctrine Versus California Reasonable Use Law
►
Black’s Law Dictionary Defines “Doctrine” as a “legal principle that is
widely adhered to”
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Black’s Law Dictionary Defines “Law” as “The aggregate of legislation,
judicial precedents, and accepted legal principles; the body of
authoritative grounds of judicial and administrative action”
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