Regulatory Structure, Policies and Process

Regulatory Structure, Policies and Process in Water Law

The public trust doctrine, which keeps the state responsible for keeping certain natural resources exclusively available for public use, has influenced the way California implements its water rights system. The history of the doctrine's application dates back to December 19, 1914, when the California Water Commission Act was passed. This act made it mandatory for the state to determine who could exercise appropriative rights to California's waterways.

On February 17, 1983, a landmark decision for the case National Audubon Society v. Superior Court of Alpine County was made when the California Supreme Court decided to explicitly enforce the public trust doctrine within its water rights system. This meant that California's State Water Resources Control Board would have to now take public trust values into account whenever it reviewed any applications pertaining to water rights. Initially, the doctrine was used to only protect navigation, commerce, and fisheries. As time passed, its role was expanded to include the rights of fishing, hunting, swimming, boating, anchoring, recreation and so forth.

The policies behind the doctrine's application include the following items. After 1914, the California Water Commission Act made it necessary for interested parties to obtain permits from the state prior to gaining the use of unappropriated water. This act has since then been incorporated into the provisions listed in the California Water Code. This code is referred to for various issues, examples of which include the way underground water should be appropriated (Sec. 1200), the way dams should be constructed (Div. 3, Sec. 6000) and the way surface water could be diverted for further use (Div. 2, Part 5.1). The Fish and Game Code (Sec. 5937) states that all owners of dams must allow adequate water to flow downstream for the benefit of the fish residing there. The doctrine's impact today is that it has effectively kept consumptive water supplies highly available and exclusively for public use.