by Gary Pitzer


B


efore attorneys wrangled in courtrooms over questions of water rights, people typically took matters into their own hands. If your neighbor up


river was damming water that affected your supply, it wasn’t unheard of that you would simply sneak up in the middle of the night and blow up the dam.


Today, matters are more refi ned but given the essential nature of water, the passion about water rights remains. After 164 years of statehood, California’s water rights system is established, but that doesn’t mean that questions don’t remain about water rights validity or seniority, a complex and sometimes heated process. With a withering drought and scarce supplies, the State Water Resources Control Board (State Water Board) has ordered certain water rights holders to stop diverting water. Some water rights holders are not impacted nearly to the degree of others. Natu- rally, there is concern whether water is apportioned legally and equitably. As the battles are fought in and out of the courts, the question is whether California needs a “water court” of some variety to untangle the legal mess that often occurs in water law.


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“I think in an ideal world it would be great,” said Art Baggett, who served as the attorney member of the State Water Board from 1999 to 2011. “The challenge during a water rights hearing is the State Water Board is responsible for enforcing the Public Trust Doctrine but at the same time … you are a regu- lator and an adjudicator and sometimes that confl icts. I found it challenging at times. It’s not as clean as it could be.” Obstacles to making it happen are the costs of providing for admin- istrative law judges (ALJs) for the State Water Board hearings and the complexity of California’s dual water rights system, which includes riparian/ overlying rights and appropriative rights. All water rights are subject to provisions of the California Constitu- tion, which requires all water use to be reasonable and benefi cial and in the public interest.


The idea of a water court emerges


periodically, in much the same way as superior courts have sections devoted to family law. However, courts gener- ally resist creating new, specialized entities. “It’s both about water rights and our judicial system,” said Alf Brandt, executive director of Dividing the Waters, a program of the National Judicial College that educates judges


about complex water issues. “Our judicial system generally does not have specialty courts.”


Stuart Somach, who has appeared in many water rights cases before the State Water Board on behalf of his clients, said some iteration of a water court would provide greater certainty than what the State Water Board currently allows.


“In its broadest articulation the idea [of a water court] is to provide for some specialized mechanism to address the kind of quasi-judicial determinations that the State Board makes [such as] complaints, petitions [and] forfeiture,” he said. “It is simply that adjudicating before a fi ve-member board makes no sense to me.” The State Water Board’s reliance on staff and the absence of an attorney board member as the hearing offi cer at the hearing, sometimes results “in a distorted type of hearing that doesn’t resemble anything like due process,” Somach said.


“If you move those to a court with a judge, that judge is not like a board member who may or may not still be on the Board when a decision is made. You also would obtain quasi-judicial determinations and a trial and hearing that make some evidentiary and legal sense,” Somach said.


Western Water


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