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Last modified
5/14/2010 8:58:17 AM
Creation date
9/30/2006 10:18:55 PM
Metadata
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Publications
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
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<br /> <br />By approving the State Water Project. did <br />the California legislature make a valid dis~ <br />position of trust assets that exempts the <br />water supply olthe Sl1P from public trust <br />obligations? <br /> <br />84 CALIFORNIA WATER <br /> <br />or necessarily implied, and will not be implied if any other inference <br />is reasonably possible. California Fish, page 597. <br />The State Water Project is an example of this issue. After many <br />studies of California's water needs, the State Water Project was <br />approved by the legislature, with a yield of 4.2 million acre-feet <br />annually. Project facilities were designed and constructed to pro- <br />duce that yield, and contracts were entered into to supply that <br />maximum entitlement. The size of the project, the various facilities <br />to be constructed, and its financing were all before the legislature <br />and the voters when the project was approved in 1959-1960. <br />Goodman v. County of Riverside (1983) 140 Cal.App.3d 900, 908. <br />Specific water rights for the project were to be issued by the State <br />Board, and construction of the project was well under way before <br />the first water rights permits were issued13 <br />By its action, did the legislature make a disposition of trust assets <br />that exempts the water supply of the State Water Project from any <br />public trust obligations? The legislature has the power to sanction one <br />public trust use at the expense of another. Colberg, Inc. v. California <br />Dept. of Public Works (1967) 67 Cal.2d 408 (cited with approval in <br />Audubon, page 439 fn. 21). This could occur in the case of a dam that <br />enhances navigation and recreation but adversely impacts spawning <br />habitat or the ability of fish to spawn upstream. However, not all pub- <br />lic uses served by a water project are trust uses. In Audubon, the <br />California Supreme Court specifically rejected the contention that <br />the state can abrogate the public trust merely by authorizing a use <br />inconsistent with the trust. Audubon, page 439 fn. 21. Furthermore, <br />the contention that all public uses are "trust uses" and thus there are <br />no restrictions on the state's ability to allocate trust property was also <br />rejected. Audubon, page 440. This holding creates some uncertainty <br />as to the limits of the state's ability to dispose of trust resources. <br />The critical issue is whether the intended yield of the State <br />Water Project is subject to reduction in order to provide water for <br />public trust uses. Audubon seems to hold that water rights "ex- <br />pressly conferred by the legislature would not be limited by the <br />public trust doctrine." Audubon, page 445 fn. 24. If that is true, it <br />seems that an action by the State Board should be nothing more, <br />insofar as the public trust is concerned, than the administrative pro- <br />cedure for implementing the legislature's directive. On the other <br />hand, the various State Water Project contracts do not guarantee a <br /> <br />13 See S.W.R.C.B. Decision 1275 (1967) and S.W.R.C.B. Decision 1291 <br />(1967); cited in Littleworth, "The Public Trust v. The Public Interest," <br />page 1220, rn. 97. <br />
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