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

seen the application of environmental considerations reduce the
amounts of water previously available from the State Water Project,
the Central Valley Project, and Los Angeles' Mono Lake system.
However, it has become apparent in recent years that the water
system did not adequately provide for the consideration of instream
and environmental values. These values were generally not consid-
ered in the myriad of court decisions that shaped our water law.
lnstead, the emphasis was on private property rights over public
rights, reflecting the prevalent thinking of the time. The system lagged
behind the public's changing values, and it took the intervention of
the California Supreme Court in Audubon to give environmental val-
ues a significant place in the rules governing water allocation. Also,
despite the lofty language in the statutes and elsewhere, the water
system has not been able to smoothly integrate considerations of
quality and quantity. The decade-long dispute before the State Board
in the Bay-Delta proceedings attests to this problem.
Even so, the system has demonstrated a remarkable ability to
adapt to society's changing needs, and there is no reason in the
future to expect less from our courts, our legislators, and our insti-
tutionalleaders. Water "law" requires a measure of stability, but
it cannot remain static. Looking ahead, the structure exists to resolve
disputes over the allocation of water, recognizing current values.
For example, the Constitution requires that all uses of water must
be "reasonable," and the Supreme Court has not found it necessary
to decide whether that language means only that wasteful uses of
water are prohibited or whether the optimal use of water is re-
quired16 Yet the doctrine of reasonable use has enormous potential
to direct the future allocation of our water resources as changing
conditions require.
The recent agreement between the state and federal govern-
ments on the Bay-Delta 17 may also portend a future approach that
reconciles the need for a reliable water supply with the restoration
and protection of instream values. This agreement provides in part
for financing fish and wildlife improvements that do not call for more
water. Moreover, if more water is necessary, it is to be provided, not
taken by regulation.

16 In National Audubon Society v. Superior Court (1983) 33 Ca1.3d 419. the
court did not resolve the issue of whether "unreasonable use" refers only
to inordinate and wasteful use of water or to any use which is "less than
the optimum allocation of water." Fn. 28, page 447.
17 See chapter 4 for a discussion of this accord.

In recent years, however. it has become
apparent that the system has not ade~
quately met the public's changing concerns
for the protection of instream values.

Water "law" requires a measure of stabil.
ity, but it cannot remain static. Though
we have an eclectic. even hodgepodge,
system of water resource management,
the structure is capable of continuing to
regulate water allocation, recognizing
current values.

.

Chapter 2 Water Rights in California 69