Will California's Water Wars Create A Constitutional Conundrum?

With nearly half the state back in drought, California’s water regulator held a contentious hearing in Sacramento on Tuesday on whether to make permanent the temporary water bans enacted by Governor Jerry Brown during the 2014-2017 drought.

The board announced it will revisit the proposed measures in March while it makes some minor revisions to the draft proposals.

Some of the proposed measures relate to restrictions against over watering lawns; hosing down driveways and sidewalks;  washing vehicles with hoses not equipped with a shut-off nozzle; and running non-recirculated water in an ornamental fountain. Certain exceptions would apply for public health and safety reasons or commercial agricultural purposes.

The Water Resources Control Board, which wants to make these rules permanent, holds that even though the measures were passed in a time of emergency they should be understood as  part of a broader effort to make conservation a way of life in the drought-prone state.

Water Board Chairwoman Felicia Marcus said that climate change is causing more frequent and longer droughts in California.  She pointed to the Sierra Nevada snowpack, which remains at levels well below the average.  The Sierra snowpack, a source of about a third of the  state’s water supply, is currently at 22 percent of the long term average for early February.

“This is why making conservation in California a way of life is so important,” said Marcus. “The Sierra water content shows we are worse off than we were three years ago, at the peak of the drought.”

Only “Reasonable” Use

But the proposed rules, which would carry fines of up to $500 per violation, faced strong push back from some water agencies who accuse the regulatory board of a power grab.

The issue, opponents say, is constitutional. The California Constitution contains a provision that prohibits the “waste or unreasonable use” of water.

Water administrators fear that the board is going to rely on the constitutional provision to erode the water rights belonging to California landowners.

“Erratic individuals can occupy great positions of power in government, and you had better believe they will occupy your chair someday,” said Jackson Minasian, an attorney for Stanford Vina Ranch Irrigation Co. “Their view of what is ‘waste and unreasonable use’ will be radically different than yours.”

Jeff Stephenson, of the San Diego County Water Authority, said the proposal marks an unauthorized expansion of the water board’s authority.

“The board appears intent on expanding and exceeding its jurisdictional authority on this matter and several others,” said Stephenson.

The board pushed back however, arguing that it was operating within its statutory authority to prevent wasteful water uses.

“We feel confident that the board is acting squarely within its authority,” said David Rose, Water Board staff counsel. “We made sure specific uses were being addressed and that they would not impact water rights.”

Rose added that water banned for use in one area, could always be put to another use.

“Prohibiting these specific discreet, wasteful and unreasonable water uses would allow suppliers, water users and water rights holders to use any amount of water that they couldn’t use . . . on a reasonable and beneficial use,” he said.

Water: Private or Public Right?

Richard M. Frank, director of the California Environmental Law & Policy Center at UC Davis, says that lost in these debates is the understanding that water is a different kind of property right, compared to for example owning a car or home.

“It’s a limited property right, which is something that is lost on a lot of people in the ongoing California debate on water. The courts have long held that water is owned by the public, and that is also embedded in California statutes. “

Private parties who seek to appropriate water have since 1914 had to first obtain a license from the state to use water and that license is subject to restrictions, he said.

“The most important of these restrictions is the constitutional provision stating that all water use must be ‘reasonable,'” Frank said. “And the state can limit, ban, and penalize unreasonable uses of water. ”

Heather Welles, an attorney who works on water rights at the law firm O’Melveny in Los Angeles, says the courts have been pretty deferential to the board’s authority to identify specific practices as wasteful or unreasonable. And in this case, the board has provided safeguards within the proposed regulations to allow water users to protest a citation.

“As a general matter, if the board is going to take action that limits specific water rights, it would have to engage in a process that would give water rights holders the ability to dispute the grounds,” said Welles.

“Here, the proposed regulations incorporate a process by which if the board is actually issuing a notice or penalty, then the water user may request a hearing before the board and, of course, seek judicial review.”

Frank noted that if Governor Brown declares another drought emergency, the move will only strengthen the board’s hand.

“The board will have broader legal authority than it has now,” he said.

And as the state plunges back into drought, just months after emerging from the last one, permanent water restrictions in California may be imminent.

“We’re not in an emergency right now, but shame on us if we just
bury our heads in the sand,” Marcus, Water Board Chairwoman,    told the Santa Rosa Press Democrat.

Legal observers expect a protracted battle ahead.