complex, more sophisticated, and more important to society, and this trend will continue. The question arises as to whether the agency has suffi cient staff and funds to accomplish all the things society asks it to do.”


Learn more about water rights from the State Water Board


Felicia Marcus, chair of the State Water Resources Control Board, speaks during a Jan. 31, 2014, press conference to announce the actions being taken to preserve remaining water supplies.


Also, critical disputes affecting the availability of water and its allocation between cities and farms on the one hand and environmental purposes on the other are often litigated through the federal Endangered Species Act (ESA), which plays an overarching role in the water management of the Sacramento-San Joaquin Delta – a vital water supply source and corridor conveyance for the Central Valley Project (CVP) and State Water Project (SWP), the two largest water projects in the state. For years, lawsuits regard- ing protections for salmon, steelhead, Delta smelt and other fi sh routinely were heard in federal district court before Judge Oliver Wanger in his Fresno courtroom. “We kind of had the equivalent of a water court and there are mecha- nisms already in place where related cases go to the same judge so that judge develops expertise and it becomes the de facto water court,” Brandt said. “That’s what Judge Wanger was for many years.”


Water disputes often end up in state superior court. There is not a “water court,” but California’s court system allows a chief justice or a presiding judge to declare certain cases “complex” and assign them appropri- ately.


Expertise is an issue for California’s courts. In its 2011 report Managing California’s Water: From Confl ict to Rec- onciliation, the Public Policy Institute of California said “the judges who have decided the vast majority of Califor- nia’s water cases have been generalists – trial and appellate judges with no specialized understanding or training in water issues,” and that “several other jurisdictions have turned to special- ized courts to resolve water and other environmental issues, on the theory that specialized judges can better un- derstand the issues and develop a more effective and coherent body of law.” Other cases involving enforcement of the federal ESA go to federal district court, where judges are confronted with complicated evidence regarding proper enforcement of the law. “The use of science in complex water cases is one of the most impor- tant – and challenging – responsibili- ties for lawyers and judges alike,” said a 2013 report, “Water Science in the Courtroom,” by the board of advisors for Dividing the Waters. “Water litiga- tion is different than most other kinds of complex litigation where science is involved. Cases can often last for years, even decades, and the continuing con- fl ict imposes a burden on society.” Because of the long-term ramifi ca- tions of water law cases, “the impor- tance of rendering a decision that fol- lows established legal principles, that is based on good unbiased science, and that is seen as fairly balancing compet- ing demands (e.g., competing con- sumptive uses and the environment) is paramount,” according to the report. The Dividing the Waters report notes that science in water cases “pres- ents unique challenges,” because it is not static but constantly responding to new data. “In the middle of water litigation, the science continues to


8 Western Water


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