Waste & Unreasonable Use: The Foundation of California Water Law
Photo: Madsen Pest
Droughts are a regular occurrence in California’s Mediterranean climate. Even before climate change was well understood, Californians knew that water stewardship was an essential element of good governance—which is why the state Constitution has a section devoted to water. Article X Section II of the California Constitution prohibits the wasteful and unreasonable use of water. As a constitutional provision, it supersedes other laws; however, it is also subject to interpretation, as there are no specific constitutional definitions of wasteful and unreasonable uses.
How, then, is the law applied? In general, it is reviewed by judges when there are lawsuits alleging wasteful and unreasonable water uses. Where courts have ruled, they have addressed specific practices. In one famous case the State Supreme Court ruled that using water to flood fields and drown gophers was unreasonable. Courts have also made clear the concept can evolve over time. What is reasonable at one time and in one place may become unreasonable as conditions change. Thus, a use that was considered “reasonable” in the early 20th Century—say, dewatering an entire salmon-bearing river to irrigate a vast swath of cropland—would not be considered reasonable today.
Another way permissible water uses can change is through action by the legislature. Article X Section II states “…This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.”
Over the past century, the legislature has passed dozens of laws that established policy for different types of water use. How those laws relate to the constitutional prohibitions is the subject of contemporary litigation. For example, in a case currently before the State Supreme Court, the question of whether a law requiring water releases by dam operators supersedes other contractual water uses is being argued as an issue of constitutional interpretation. The Court’s eventual rulings will set precedent for future cases. In addition, since California is a state that allows ballot initiatives, future voters could change or add to the existing constitutional language.
The other entity with decision-making authority is the State Water Resources Control Board (Water Board). The Water Board has co-jurisdiction with the courts over the water rights system and can make water rights allocation decisions based on waste and unreasonable use analysis; and occasionally, the Water Board has issued cease and desist orders resulting from waste and unreasonable use review. Nevertheless, the Water Board’s decisions are subject to judicial challenge.
As the state’s rivers and fish species face dire impacts from ecological decline due to diversions for agriculture and cities, debates over what constitutes wasteful and unreasonable use will continue. Moreover, new or expanded water uses, such as AI data centers, may also draw scrutiny based on waste and unreasonable use law. Ultimately, our institutions must prove they can evolve in response to changing ecological and economic realities—and make good on fulfilling the will of the people.