develop,” the report said. “This con- tinued development means scientifi c uncertainty remains inherent to water litigation.”


The report cautions that “for each river system, the number of scien- tifi c experts – and water lawyers – is limited,” and that “when scientists without experience in the particular river system become involved in water litigation, they may raise issues that have little relevance to the particular river system.”


“The federal, state and local agen- cies with responsibility and authority to manage the river may be numerous, but the community of agency scientists also remains small,” according to the report. “The uncertainties inherent to changing river systems may lead to agency scientists remaining conserva- tive in their forecasting of the river’s response to changing management. They may try to maintain the status quo to protect the resources in the river system. Or, they may have per- sonal or institutional views that are, or become, out of step with the available scientifi c information.” Consequently, “judges therefore may need to examine scientists who lack experience in the watershed at issue, with careful questions [and] may need to probe settled assumptions and practices on the part of insider scien- tists that may have become authorita- tive without appropriate peer review or updating.”


The allure of a special court for water cases is not new but the idea runs into different obstacles, one of which is whether the number of water cases necessitates the court’s creation. It’s been noted that the State


Water Board’s decisions are subject to judicial review and that water rights hearings are limited, given that the place of use for the major water rights holders – the federal and state govern- ments and the cities of San Francisco and Los Angeles – is not going to change.


Still, the time and expense associ- ated with cases leads some attorneys to pine for a water court, though even


July/August 2014


proponents acknowledge the barriers, such as the surface water/groundwater divide and the inherent diffi culty in accomplishing a basin-wide adjudica- tion. Barring a water court, perhaps water cases should receive judicial preference the way California Environ- mental Quality Act cases do. Stockton attorney John Herrick, who represents Delta water users before the State Water Board, said the agency is infl uenced by its gubernatorial-ap- pointed members and that its policies get entwined with its quasi-judicial authority.


“The governor appoints board members and the governor has certain policies,” he said. “The Board then makes rules most likely in compli- ance with the governor. The problem is when we have a water rights issue, which is quasi-judicial; the board is also the judge.”


The “best example” of the inher-


ent confl ict, he said, is the Central Valley Salinity Alternatives for Long- Term Sustainability Program, which acknowledged that solving the prob- lem of salt disposal will take decades to accomplish.


“How can I ever go in front of the State Board, which is part of a program that says it’s going to take us 30 years to do something about this, and force somebody to stop putting salt in the river?”


Baggett said he supports the idea of a water court, but that incorporating it would be a challenge.


Complicating matters is Cali-


fornia’s three water rights systems – riparian, pre-1914 appropriative and post-1914 appropriative. On top of that, there is the State Water Board’s and the court’s concurrent jurisdiction to apply the Reasonableness and Public Trust Doctrines, which protect the waters for everyone and can be used to modify a water right if necessary. Finally, there is the Racanelli Decision, the 1986 appellate court ruling that gave the State Water Board additional guidelines and instructions for protect- ing and preserving water quality in the Delta.


Read PPIC’s report


“Managing California’s Water: From Confl ict to Reconciliation”


“[T]he judges who have decided the vast majority of Califor nia’s water cases have been generalists ... with no specialized understanding or training in water issues. … [S]everal other jurisdictions have turned to special ized courts to resolve water and other environmental issues.”


– Public Policy Institute of California


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