Commentary: In California, all water use must be reasonable


Issue Date: July 18, 2018
By Chris Scheuring
Chris Scheuring
Instead of seeking additional flows in rivers to benefit fish, regulators should shift focus to other stresses such as invasive species and to assuring sufficient fish habitat and food supply.
Photo/Dave Kranz

The headlines about a huge new regulatory proposal for the upper San Joaquin River have me thinking about all of California's rivers, the water rights Farm Bureau members hold and use on those rivers, and a concept called "reasonable use."

The requirement that water be used "reasonably" actually represents a constraint on the exercise of any water right. In other words, whatever the face value of any water right might be, it can be no greater than the amount of water that can be used in a reasonable manner.

In fact, that's a constitutional command.

In 1928, California voters amended the state Constitution to insert Article X, Section 2, which recognized that conditions prevailing in California require that "the water resources of the State be put to beneficial use to the fullest extent of which they are capable" as a matter of the general welfare.

That provision—Article X, Section 2—went on to provide in several places that water can only be used "reasonably," and that unreasonable use of water is to be prevented. The idea, of course, is that in a state governed by water scarcity, water used unreasonably can only subtract from someone else's reasonable use of water.

A colleague of mine recently wrote an article for a legal journal on this point, and he got me thinking about how this broad concept fits into our current water situation. The basic fact of our California hydrology has not changed since 1928—the basic fact of scarcity—but we certainly face new pressures on water rights.

More about those new pressures in a minute. First, it's instructive to remember, in a nutshell, how Article X, Section 2 got written into the California Constitution.

It came in direct response to a decision of the California Supreme Court in 1926, in a case called Herminghaus v. Southern California Edison Co. In that case, landowners downstream from a proposed upstream storage project—a hydroelectric reservoir—maintained they had an absolute right to natural riparian flood-flows in whatever volume they existed, in order to water their pastures, regardless of whether that irrigation was reasonable in method. The court basically agreed, holding that the upstream project proponents had, therefore, no right to store some of the river's flow.

Article X, Section 2 was the voters' repudiation of that ruling. The amendment set the stage for California's future development by making water—the winter snows and rains—available for storage to meet the needs of cities and farmers, as well as for power generation and flood control.

It remains the rule we live by today: Water can only be used "reasonably," and no one has a right to use water unreasonably at the expense of others.

Fast-forward to today. Farmers' and ranchers' water rights are under tremendous pressure from ecosystem-related requirements, through various environmental flow demands, that are in every sense subject to the same constitutional requirement of "reasonable use." Those flows, typically for the stabilization or recovery of fish populations, must be scrutinized for their effect—for their "reasonableness"—if they are to take place within our constitutional water framework.

Without question, fisheries conservation is a public value that has been duly articulated by our court system, Congress and the state Legislature. As a consequence, a great volume of water has been foregone by human users in recent years.

The question going forward, however, is how to make those efforts to support fish populations and aquatic ecosystems most effective.

For example, the latest news on the delta smelt has not been good. The fish's population does not appear to be rebounding, or even stabilizing, even though the operations of both federal and state water projects have been mightily constrained in efforts to benefit it.

Is that reasonable?

More to the point—as I alluded to at the outset—the State Water Resources Control Board is proposing new, flat-rate requirements for "unimpaired flows" of a substantial percentage on major tributaries within the Sacramento-San Joaquin River system, intended to help other fish species (see story). In implementation, the board's proposals would probably require cities and farms to cut back substantially in their use of water.

This would be no mere belt-tightening; affected irrigation districts estimate there would be hundreds of thousands of acres of crops fallowed, thousands of jobs lost and more than $1 billion in annual economic loss.

Will that be reasonable? Will it bring fish back?

It may be time to look at another concept the state Supreme Court has articulated, instead of the flow-centric approach that comes at the expense of so many people. That is the concept of a "physical solution," which seeks to achieve the same or better results without high water costs to one party or another.

Elements of a physical solution—a better solution for fish and people—may include recasting our flow-related fisheries efforts toward a more precisely calibrated regime of "functional flows," in those cases where instream flows can be shown to be effective. That means asking for additional flows in the name of fisheries conservation only at times and in places where they demonstrably help the fish and are not in conflict with humans. It may also involve shifting our focus to other stressors on fish populations, which include conservation measures related to habitat, food supply and invasive species.

That, to me, seems reasonable.

(Chris Scheuring is managing counsel for the California Farm Bureau Federation. He may be contacted at cscheuring@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.