Dry Times Revive 'Reasonable Use' of Water Doctrine

June 23, 2008
San Francisco Daily Journal

Is it reasonable to keep a front lawn in arid Los Angeles lush and green?

What about holding on to an old water-guzzling toilet?

Or flooding fields to grow cotton in the parched Central Valley?

These are questions policymakers and environmentalists in California are starting to ask as they grapple with how to cope with a water shortage that many experts predict will get measurably worse.

Now some conservationists have seized on the notion of "reasonable" use to advocate better water use and they say an obscure part of the state's Constitution backs them up. The Constitution has long said Californians are entitled to only a reasonable use of water, a notion bolstered by an amendment to the document 80 years ago. The Constitution states water should not be wasted and that it should be put to "reasonable and beneficial use thereof in the interest of the people and for the public welfare."

“I think the question of what is reasonable use will come more to the forefront - with looming droughts and the specter of climate change, it may put California and other western states into permanent drought and we'll have increasing numbers of people and interests fighting over a declining aggregate of water," said Richard Frank. Frank is a member of a task force that advises Gov. Arnold Schwarzenegger on long-term management of the Sacramento-San Joaquin Delta, which provides water for Central Valley farmland and about 25 million people statewide.

With the state now in an official drought and the delta near ecological collapse, two advocacy groups are invoking the reasonable-use doctrine in hopes of forcing the State Water Resources Control Board to cut back water pumping from the delta. The California Sportfishing Protection Alliance and the California Water Impact Network filed a petition with the board, which controls water rights, in May. They allege the state- and federally run pumps harm the delta and are unreasonable. The pumps are one part of the vast delta water delivery system that includes dams, levees, canals and reservoirs.

"We think we've pushed the delta to the breaking point," said Bill Jennings, executive director of the sportfishing alliance, referring to the collapsing delta fisheries. Too much delta water is being used to grow cotton and alfalfa and maintain front lawns in the desert, Jennings said. "That's a huge wastage of water; that's an unreasonable use of water," Jennings said. Jennings' group believes more water should stay in the delta to help endangered fish populations. The tiny delta smelt is on the verge of extinction and chinook salmon populations in the delta are crashing.

It's "salmon versus lawn, salmon versus cotton, salmon versus hay," said Michael Jackson, a Plumas County-based attorney who authored the reasonable-use petition. "Salmon are much more a food than lawn, cotton or hay. They're also a life form and most people in America, we think, won't extinguish a number of life forms simply to stack cotton in a warehouse."

The state water board signaled this month that if the state and federal agencies don't soon find a way to deal with the delta's problems, it might take up the question of whether the pumps are reasonable itself. If the state board were to take up the petition, it would be hard to limit the reasonable-use analysis to the state and federal pump operations, said Clifford Schulz, a senior water attorney with Kronick Moskovitz Tiedemann & Girard in Sacramento. It would inevitably suck in all the parties diverting water from the delta as well as those who take water from the rivers feeding into the delta, he said.

"It would be the grandfather, grandmother and uncle of all water-rights proceedings the state would ever see. It would be a huge, huge deal," said Schulz. "The litigation over it would take 10 to 20 years to complete. It would divert everyone's energy to that instead of finding a solution to satisfy the needs of the environmental side and economic and water-supply side." Schulz pointed out that some environmental groups and urban and agricultural water agencies are at the table with the government to try to reach agreement on how to manage the delta.

In the past the reasonable-use doctrine has been invoked to stop farmers from flooding their fields to kill gophers and to use water to transport and expose gravel. Californians put the reasonable-use doctrine into its current form through a 1928 ballot initiative to amend the Constitution. The move was a backlash to an unpopular Supreme Court decision that said landowners who draw water from rivers on their land did not have to meet a reasonable-use standard.

The doctrine has wide application and it is a powerful tool, said Peter Gleick, a water expert and president of the Pacific Institute, an Oakland-based think tank. "Because it's so powerful, water agencies and managers and regulatory agencies have been reluctant to use it," Gleick said.

The water board takes reasonable-use questions on a case-by-case basis and the investigations are very time consuming, said Tom Howard, chief deputy director of the state water board. "With waste and unreasonable use, any time somebody is using water in any way in the state, the water board can step in and review what they're doing and evaluate if what they're doing is reasonable," Howard said. "It's just a very broad chance to look at anything that can affect the way water is used. In that respect it has a great deal of applicability but little utility in practice." The board has a huge number of responsibilities to carry out and, he said, it would not take on a broad question such as: "Is the city of Los Angeles' water use reasonable?" "We don't sit here thinking how we are going to apply our reasonable-use power over the next six months," Howard said.

The state board should use this power to force everyone to use water more efficiently, Gleick said. "What we're really talking about is how do we do the things we want with less water," he said.

But whether using water to keep a front lawn will pass the reasonable-use test in the future is up in the air. Some water districts are limiting lawn watering and "it could be argued that if we get into a permanent drought situation one of the key symbols of home ownership could conceivably be deemed unreasonable," said Frank, who is also the executive director of the California Center for Environmental Law and Policy at the UC Berkeley School of Law. But, what is deemed unreasonable would be situational - what's reasonable during a rainy year may not be in a drought, what's reasonable in the wet North Coast may not be in the Mojave Desert, Frank said.

While the state water board could invoke the reasonable-use doctrine to force people to irrigate more efficiently, to line leaking water ditches or use low-flush toilets, it's highly unlikely the board would say a particular crop, such as cotton, is unreasonable, said Schulz, the Kronick Moskovitz attorney.

Frank agreed. The water board and the courts "are going to be moderate and not take extreme positions," he said. That said, the court could very well use the reasonable-use doctrine "to constrain some outmoded and less logical uses of water," Frank said, pointing to the use of flood irrigation to grow cotton and alfalfa.

Conservationists who pit cotton against salmon or front lawns against salmon are stretching the doctrine beyond its historic use, said Alan Lilly, a partner and water attorney at Bartkiewicz, Kronick & Shanahan in Sacramento.

"Under the traditional application of the reasonable-use doctrine it would stop people from excessively using water on their lawns," Lilly said. "What some people are advocating is even if someone is using the bare minimum to keep their lawn alive, that that should be reallocated to keep water in the delta to protect fish."

While reasonable use has an important role to play in the ongoing battle over divvying up water, "it's not some kind of magic incantation, where you say hocus pocus and everyone has to stop what they're doing," said Joseph Sax, a water law expert and professor emeritus at the UC Berkeley School of Law. "It isn't like a boxing match where someone gets knocked out and you have a winner-take-all. No one's going to close down the city of Los Angeles, shut down Central Valley agriculture or kill all the fish in the delta. ... There's going to be some prices to be paid but eventually it's got to end up with some acceptable result.