issues will be pressed forward and you will see a lot more administrative and judicial activity regarding these issues. “Conversely, if it’s a wet year, the momentum to address issues of water appropriation will be lost, while the issue will remain.


Before attorneys wrangled in courtrooms over questions of water rights, people typically took matters into their own hands – at least according to this postcard.


why their [system] works because [it’s] more about adjudication.”


Miller said the water court process in Colorado provides “plenty of op- portunity” for experts and everyone to have their case heard, and forces – in a sense – everyone with a water right in a similar basin to go to court and protect their interest “so it’s very hard to leave somebody out.” However, in the absence of a Pub-


lic Trust Doctrine, ensuring protection of public values is limited. “It’s harder to protect the public’s interest in water because you are not able to say, ‘you’re injuring my water rights,’” Miller said, adding that instream protections are often get just “whatever is left in the system.”


Buy the Water Education Foundation Layperson’s Guide to Water Rights Law


Maintain the Status Quo? Should the drought continue and water become even scarcer, Walter with Kronick, Moskovitz, Tiedemann & Girard believes the impetus may exist for a thorough examination of how water is allocated.


“In California there are a lot of contentions and skeletons in the closet that have never been legally tested and then a year like this comes around and all of a sudden it becomes important to get at these things,” he said. “If it’s dry again next year, I expect these


12


“In dealing with it that way, with these kind of emergencies only oc- curring intermittently and often only for a short period of time, it forces some quick decisions, some would say reactionary decisions, that might not be the best in the long term and that’s why sometimes I think we ought to move forward and try to resolve some of these issues so they do not arise in the future,” Walter said. “That might feed into this idea of a specialized administrative or judicial water court to make it easier to resolve those issues or going the full stream adjudication route.”


One lingering and contentious issue could be the role of the CVP and CVP in protecting Delta water qual- ity even during severe droughts such as this and whether a reevaluation of the reasoning for that allocation of responsibility is necessary. Walter said it seemed reasonable early on for these two large projects to “shoulder the load in ensuring adequate environmental and water quality fl ows,” but that “now the pendulum may be swinging.” “There is something to be said about fairness with every water right holder contributing a little bit for these general societal purposes,” he said. It is unlikely the State Water


Board’s quasi-judicial hearing pro- cess will change anytime soon. In the meantime, there is room for adjustments to improve the outcome, Baggett said.


“The status quo is not a bad thing and I think it could be tweaked so that attorney members running the hearing are people with some trial experience,” he said. “That was the advantage I had – you are not intimidated – it’s easy for a non-attorney to get intimidated by some of these very aggressive lawyers.” If a hearing process with ALJs is instituted, the fi ndings “should


Western Water


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15