The Water Report: Water Rights, Water Quality and Water Solutions in the West Issue 17

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July 15, 2005 The Water Report GENERAL LOCATION Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited. 19 Releases Made for Section 5937 Purposes Must Be Reasonable Fish & Farms Plaintiffs must establish that the releases they seek to compel under Section 5937 constitute a reasonable, non - wasteful use of water. Article X, Section 2 of the California Constitution requires that all water uses in California be "reasonable" and prohibits "waste." "All uses of water, including public trust "Reasonable" uses, must now conform to the standard of reasonable use" set forth in Article X, Section 2 of the Use California Constitution. National Audubon Society v. Superior Court, 33 Cal. 3d 419, 443 (1983). Section 5937 has been described as a legislative expression of the public trust doctrine. California Trout, Inc. v. Superior Court, 218 Cal. App. 3d 187 (1990) (Cal Trout). As such, flows mandated by Section 5937 are subject to the requirements of Article X, Section 2 that they be reasonable and not wasteful. Question of Whether a particular water use is reasonable within the meaning of the California Constitution is a Fact question of fact dependent on the circumstances of each case. Westlands Water Dist. v. Patterson, 900 F. Supp. 1304, 1316 (E.D. Cal. 1995); City of Barstow v. Mojave Water Agency, 23 Cal. 4th 1224, 1242 (2000). "What is a reasonable use or method of use of water is a question of fact to be determined according to the circumstances in each particular case." Joslin v. Marin Man. Water Dist., 67 Cal. 2d 132, 139 (1967). "What is a beneficial use depends upon the facts and circumstances of each case. What may be a reasonable, beneficial use, where water is present in excess of all needs, would not be a reasonable, beneficial use in an area of great scarcity and great need." Tulare Irr. Dist. v. Lindsay - Strathmore Irr. Dist., 3 Cal. 2d 489, 567 (1935). See also People ex. rel. State Water Resources Control Bd. v. Forni, 54 Cal. App. 3d 743, 750 (1976). Relevant reasonableness evidence includes economic and social welfare impacts: Economic "The population and economy of this state depend upon the appropriation of vast quantities of water for Impacts uses unrelated to in- stream trust values. California's Constitution (see Art. X, § 2), its statutes (see Wat. Code, §§ 100, 104), decisions (see, e.g., Waterford Irr. Dist. v. Turlock Irr. Dist. (192) 50 Cal. App, 213, 220 [194 P. 757]), and commentators (e.g., Hutchins, The Cal. Law of Water Rights, op. cit. supra, p. 11) all emphasize the need to make efficient use of California's limited water resources: all recognize, at lease implicitly, that efficient use requires diverting water from in- stream uses. Now that GENERAL LOCATION Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited. 19