PUB00109

• Year: 1995
• Title: Califormia Water
• CWCB Section: Interstate & Federal
• Author: Arthur L. Littlewort
• Description: History, overview, and explanation of water rights and legislation of California
• Publications - Doc Type: Historical

to the land and the navigable waters that covered it. Marks, page
256. The Marks court stated that traditionally the public trust doc-
trine had been applied to rights such as fishing, hunting, bathing,
swimming, boating, and general recreational purposes in the navi-
gable waters of the state. However, the court stated that public uses
of tidelands are flexible enough to encompass changing public
needs. Thus, the state as trustee is not limited to an "outmoded clas-
sification" in determining which utilizations are appropriate. Marks,
page 259. The court wrote-

There is a growing puhlic recognition that one of the most impor-
tant public uses of the tidelands-a use encompassed within the
tidelands trust-is the preservation of those lands in their natural
state, so that they may serve as ecological units for scientific study,
as open space, and as environments which provide food and habi-
tat for birds and marine life, and which favorably affect the
scenery and climate of the area. It is not necessary to here defme
precisely all the public uses which encumber tidelands. Marks,
pages 259-260.

This holding Significantly expanded the scope of protection offered
by the public trust doctrine, since the diversions from streams may
adversely impaot these natural values, even if navigation, commerce
and fishing are not affected.12
For some time there has been controversy over whether the
public trust doctrine applies to water stored behind dams. Because so
much of California's water supply is stored behind dams, this is an
issue of tremendous importance. As yet, no court has ruled on this
issue, although, in the case of a non-navigable stream, one court
held that the water behind a dam is not subject to the public trust doc-
trine. Golden Feather Community Association v. Thermalito Irrigation
District (1989) 209 Cal.App.3d 1276.
The real question is whether the legislature's direct authorization
of a water project involving the construction of reservoirs and the
storage and diversion of water for consumptive uses is a disposition
of public trust values. As noted earlier, the legislature, at the exer-
cise of its discretion, has the power under certain circumstances to
dispose of property free of any public trust obligations. Under such
circnmstances, the legislative determination is "conclusive upon the
courts." Of course, the legislative intention must be clearly expressed

12 Dunning, "The Public Trust Doctrine in Western Water Law: Discord or
Harmony," pages 17-20 to 17-21.

Uses currently embraced within the protec.
tion of the public trust.

Whether the public trust applies to water
stored behind dams remains an unsettled
question.

Chapter 3 Consumptive and Environmental Uses 83