8009

• UCREFRP Catalog Number: 8009
• Author: Natural Resources Law Center.
• Title: Restoring the Waters.
• USFW Year: 1997.
• USFW - Doc Type: Boulder, CO.
• Copyright Material: YES

In the Mono Lake litigation, the court
found that "both the public trust doctrine
and the water rights system embody
important precepts which make the law
more responsive to the diverse needs and
interests involved in the planning and
allocation of water resources" (National
Audubon Society v. Superior Court).
Because Los Angeles's rights had been
granted without consideration of public
trust values, the court held that the
doctrine had been violated, and it man-
dated that the Water Board undertake
further proceedings to apply the doctrine.
Legal Precedents
The Mono Lake cases have established
significant precedents in applying
the public trust doctrine to limit water
diversions in California:
^ The doctrine applies to water rights to
navigable waters, like Mono Lake, and
to anon-navigable tributary if diversion
from the tributary may cause injury to
the trust values of the downstream
navigable waters.
^ In issuing a new water right or regulat-
ing an existing one, the Water Board
must, "whenever feasible," avoid harm
to public trust uses of the subject
waters.
^ Neither the California Water Code
(establishing municipal supply as the
highest use) nor the public trust doc-
trine has an absolute priority. The law
of the state is an "integration" of the
two.
^ The state may "surrender the right of
protection only in those rare cases when
the abandonment of that right is
consistent with the purposes of the
trust" (National Audubon Society v.
Superior Court).
^ No vested water right exists to damage
public trust values. The Water Board
ha.s a duty of "continuing supervision"
over each existing water right and may
reexamine past allocation decisions to
assure protection of trust values. Protection of tributary streams
^ VGhile the doctrine continues to protect
the traditional trust values of fishing
and navigation and commerce related to
water uses, it also protects more
modern values, including r.°creation,
scientific study and aesthetic enjoyment.
^ Where a water right has been used to
cause unnecessary harm to trust values,
the remedy may include physical
measures to restore those values, not
merely cessation of the offf~nsive
diversion.
^ The Water Board and courts share
jurisdiction to determine whether an
existing right has caused w~necessary
harm to trust values.
For Vlore Information Contact:
Richard Roos-Collins
Natural Heritage Institute
114 Sansome Street, Suite 1200
San Francisco, CA 94194
Phone: [phone]
Fax: [phone]
E-mail: [e-mail]
Additional complaints were filed in
the early torrid-1980s to enforce the
public trust doctrine to protect
tributary streams. They also asserted
California Fish and Game code
§5937 that requires dams to pass
sufficient water "to keep in goad
condition any fish that may be
planted or exist below the dam."
^ Based on this statute, the
California Court of Appeals
required the Water Board to
condition Los Angeles's water
rights to provide permanent
protection for the tributary
fisheries.
^ Interim relief from the court
prohibited virtually all diversions.
^ After extensive hearings, the Water
Board amended Los Angeles's
water rights licenses to prohibit
diversions until the lake rises to
the bare minimum for ecological
quality and, thereafter, to not more
than one-fourth of the tributaries'
average flow.
^ Both the interim relief and final
order (Water Rights Decision
1631, issued in 1994) also
required Los Angeles to undertake
restoration of the tributary
channels antl lake wetlands.
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