As the November elections approach in a close Presidential contest, both candidates hope to capture key swing states in the West. To do so, the candidates have been campaigning hard on some of the biggest issues facing many in those fast-growing states, including ongoing concerns about limited water resources. In this second Q&A centered on water issues, Environmental, Land Use and Natural Resources attorney Christopher J. McNevin, a partner in Pillsbury’s Los Angeles office and an active member of the firm’s Climate Change & Sustainability team, discusses the legal issues related to water rights, a complex challenge since no one can really “own” a natural resource such as water.
Q. What makes the Western states so unique, in terms of water rights and water law?
McNevin: Like many U.S. legal systems, the law of water rights in California and other Western states is a hybrid. Our law is based in part on English Common Law. Under common law, a landowner whose property abuts a body of water has the right to use that water. Today, these so-called “riparian” rights still exist on the East Coast, which is generally blessed with ample water for drinking, industry and agriculture—generally creating fewer battles over who can access and consume it.
By comparison, states in the West - particularly California, Nevada, Arizona, New Mexico and Colorado—are dry and arid. Less accessible surface and groundwater in these states has led to many problems, one of which led to the development of water laws in the West as we see them today.
During the California Gold Rush, miners needed lots of water to work their claims, and because the region was largely lawless at the time, they had to transport water from streams and waterways to their claims. By diverting water to land that did not abut a river or stream, sometimes miles away from the water source, they obtained what are called “appropriative” rights to water. That means the first person to divert and use water for mining, agriculture or drinking water has the right to continue to do so. And even though they do not own the streams, lakes or even the water itself, those owning appropriative rights to water can sell or transfer those rights to others, much like one can buy and sell real estate. However, the rights may be lost if they go unused for more than five years.
Q. Are water rights in the West really “first come, first served?”
McNevin: Not exactly. California and several other Western states have what is called a dual system, which recognizes both common law riparian rights and the more modern appropriative rights. As you can imagine, those uses sometimes conflict, which can lead to disputes over who began using what water, and when, and for what purpose.
In 1914, the California Water Commission Act established a regulatory system for obtaining new appropriative rights. Under that system, the State Water Resources Control Board issues permits for water appropriation, after reviewing applications for compliance with the California Environmental Quality Act or CEQA, among other rules and regulations. Other agencies, such as the California Department of Fish & Game reviews applications as well, for public trust issues. On top of that, because water is a limited resource, California and others Western states require that water be put to “reasonable and beneficial use.” The meaning of those terms has led to numerous disputes.
The West is growing rapidly and tensions over scarce water and development remain at the forefront, with disagreements over water rights playing out in state legislatures, the courts and water boards. If the decades of disputes over access to the Colorado River and the waters of the Sacramento Delta are any indication, we will see more of the same in coming years.
Q. What other water disputes are you seeing these days?
McNevin: Some water sources are considered part of the public trust. In 1983, an important case involving California’s Mono Lake and the diversion of water for use in Southern California established that the public can assert rights to stop water diversion from a region. In that case, flows were restored to Mono Lake after decades of diversions.
Recently, we encountered another novel claim for water rights. As Special Counsel to the Orange County Water District, Pillsbury participated in one of the largest water rights proceedings in recent history. The hearings included discussions over water availability, and its affect on growth and climate change. Ultimately, a number of competing interests were able to resolve their disputes and work to a reasonable allocation. After the hearings were concluded, an Indian tribe claimed ancient rights to use of some of the upstream water. That issue is still pending—yet another wrinkle in the West’s unique approach to water.
Q. Tell us about evolving water law issues in the U.S. today.
McNevin: Much of my practice deals with contamination and groundwater issues. As our technology gets more sophisticated over time, we are discovering more and more chemicals in our water, some of which are alleged to cause cancer or other diseases. In fact, we are discovering things today that we didn’t even know about 20 or 30 years ago. And a controversy has arisen over how much of those substances we can tolerate in our drinking water.
Today, for instance, we are learning about prescription drugs and their metabolites that have cycled through our water supplies. We have also been increasingly addressing aquifers impacted by perchlorate, a rocket fuel, and other compounds which may be of great value to society, but can cause problems when released into the environment.
Q. What’s at stake here both financially and for industries that rely heavily on access to water?
McNevin: Like all things involving water in the West, the stakes are enormous as the cost of this critical resource rises and access to it becomes more limited.
Q. Is climate change impacting water issues today?
McNevin: Yes, this is being discussed whenever water purveyors and water rights lawyers get together. Climate change issues are raised in water rights applications, as well as in CEQA documents. The decision makers want to understand the carbon footprint of projects and whether it makes senses to move water long distances as we traditionally have, or whether other options such as increased recycling and local supply arrangements, can help to fill a need. And there is concern that some of the traditional water sources for the West, such as the Sierra snowpack, seem to have been diminishing in recent years, causing a great deal of focus on alternative sources.