Cynthia Koehler is Senior Consulting Attorney for EDF.
The California Legislature is on the cusp of voting for an historic water deal. The Senate could vote within the next few days. And as the famous saying goes, there are two things that you don’t want to watch: sausage making and the legislative process. The latest attempted additive to the sausage: an amendment that would jeopardize the long-standing and foundational water law premise that requires that all water use in California be “reasonable” and not wasteful.
For the better part of a century, California–like most of the Western U.S.– has followed the law of “reasonable use,” that requires all water use in the state must be “reasonable” and not wasteful. Conservation of water is at the very heart of any reasonableness determination: “[W]hat is a reasonable use of water depends on the circumstance of each case, [and] such an inquiry cannot be resolved in vacuo isolated from statewide considerations of transcendent importance. Paramount among these we see the ever increasing need for the conservation of water in this state, an inescapable reality of life quite apart from its express recognition in [Art. 10, Sec. 2].” Joslin v MMWD, 67 Cal. 2d 132, 140 (1967).
The water bill under consideration in the California Legislature establishes water conservation targets for urban areas and provides a number of pathways to get there. The Republican alternative bill would provide that the failure to meet those targets could not be used as evidence of waste or unreasonable use of water–forever. In other words, “here’s a conservation target, but don’t worry too much about meeting it, we won’t use it against you…”
Do we truly want to set California on a course for smarter water use, efficiency and conservation or just give it lip service?
Why are some lawmakers trying to prevent the new conservation standards from applying to the long-standing reasonable use and anti-waste rules? The claim is that the conservation targets could lead to a “floodgate of litigation.” But this is not compelling. Water agencies are already required to use water reasonably and to conserve. The State Water Resources Control Board has confirmed that cases challenging water use are extremely rare. Nothing in the proposed bill establishes a new cause of action for lawsuits.
Professors Joe Sax and John Leshy, among the country’s most prominent water law professors have weighed in (PDF) on the waste and reasonable use language. In their view: "Properly, nothing in the bill before you suggests that the mere failure to meet the targets is per se evidence of waste. Similarly nothing should mandate that such failure is per se reasonable"
We hope the Legislature takes heed. There is nothing to gain, and much to lose, from tampering with California’s entirely appropriate reasonable use laws. This amendment is one tainted ingredient in the sausage that we can do without. For more on the unreasonable use and water conservation issue, please read Bettina Boxall’s recent article in the Los Angeles Times.
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