Is Surface Water Regulation in California New and Improved, or Just New?

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Attorney Wes Miliband authored an article for Bloomberg BNA’s Water Law & Policy Monitor titled “BBNA Insights: Surface Water Regulation in California—New and Improved, or Just New?” In the article, Miliband outlines the history and evolution of California’s surface water regulations and how recent judicial decisions and legislation clarify and potentially  expand the state’s regulatory jurisdiction and scope of authority.

Miliband discusses:

  • The history of California’s water rights dating from the time of the ‘49ers and statehood in 1850 through 1914, during which water rights are treated under California law as real property rights;
  • The history after the enactment of the Water Commission Act of 1914, which served as the predecessor to current water code provisions governing appropriation and made appropriative water rights subject to much greater scrutiny and regulation;
  • Several recent court decisions that challenge the position that the California State Water Resources Control Board lacks jurisdiction to curtail pre-1914 water rights;
  • New regulations, enacted to combat drought, that require all surface water diverters to report their diversions annually and some to comply with new measurement and reporting requirements; and
  • A new California Court of Appeals ruling that an entity or individual who plans to “substantially divert” water must provide notification to the state Department of Fish and Wildlife, even if the legal right to use the water was already established.

Miliband concludes his article by discussing challenges arising from California’s legal and regulatory structure that the state must recognize and overcome to achieve long-term sustainability. “With many water supply challenges known and the natural resource limited, stakeholders must engage in proper planning and cooperative efforts for long-term sustainability,” he writes. “The alternative is contentious litigation where a zero-sum game mentality exists.”

Read “BBNA Insights: Surface Water Regulation in California—New and Improved, or Just New?” (PDF), published March 3, 2016.

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