Hydraulic Fracking and the Battle Over Beneficial Water Use in California: The Next Phase of Fracking Litigation in California

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The competition between agriculture, energy, domestic and environmental interests for water in California is fierce and is about to become more contentious.  In a “wet year,” the demand for water from these interests may exceed the ability to deliver a sufficient supply of water to the end user.  In a drought period, the demand for water will most likely exceed the available supply.  When demand exceeds supply, the issue of what constitutes a beneficial use and which beneficial use best serves the people of the state will need to be decided. California law and policy empower local and regional authorities with the authority to determine which use is “most beneficial.”  In the end, the final arbiter of this issue will likely be the California courts.

 

Article X, section 2 of the California Constitution provides that all uses of water must be for a beneficial purpose and that water must be used in a reasonable quantity.  The terms “beneficial purpose” and “reasonable quantity” are vague and provide room for a wide range of interpretations.  Under California law, the general welfare of the people of the state of California requires that the water resources of the state be put to a beneficial use to the fullest extent of which they are capable. The waste or unreasonable use of water is to be prevented and the right to use the water does not extend to the waste or unreasonable use of the resource.  In California, multiple uses are favored; reserving water for a single use is disfavored.   In California as in other jurisdictions, the state owns the water, all others have an usufructuary interest, which “confer[s] the legal right to use the water that is superior to all other users, [but] confer[s] no right of private ownership” in the water itself.

 

The California Constitution grants police powers to the local governments to exercise authority over the state's water resources to the extent the resources are capable of being put to beneficial use for the public welfare. Article XI, section 7 of California’s Constitution provides that a “county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulation not in conflict with general laws.”  Under this section, local governments have the authority under their police power to protect the public welfare in a field that the state has not explicitly, impliedly or substantively “occupied.”  Recently, 24 counties have introduced ordinances restricting water exports, bringing the total number of counties to 27 that have adopted some version of “Home Rule” regulations. Most of these ordinances require the end users to prove that their uses will not deplete the groundwater, degrade the quality of the groundwater, or result in land subsidence.

 

Courts have repeatedly upheld local zoning ordinances that regulate water usage in a particular zone. In addition to passing an ordinance under their police powers, several counties also have the option to regulate water usage by establishing water management plans.

 

Under existing state law, counties have the authority to regulate groundwater usage. Although counties can choose which interests to prioritize, it is worth noting how the state has thus far seen fit to balance competing “beneficial uses.”  In acting upon applications to appropriate water, a commission or board will need to consider the relative benefit to be derived from (1) all beneficial uses of the water concerned including use for domestic, irrigation, municipal, industrial, preservation and enhancement of fish and wildlife, recreational, mining and power purposes, and any uses specified to be protected in any relevant water quality control plan, and (2) the reuse or reclamation of the water sought to be appropriated, as proposed by the applicant. A commission or board may subject such appropriations to such terms and conditions as in its judgment will best develop, conserve and utilize in the public interest, the water sought to be appropriated.

 

As a matter of state policy, water resources are to be used “to the fullest extent ... capable” with development undertaken “for the greatest public benefit.”  In determining whether to grant or deny a permit application in the public interest, a commission or board will need to consider “any general or coordinated plan ... toward the control, protection, development ... and conservation of water resources,” as well as the “relative benefits” of competing beneficial uses.

 

When balancing the “public benefit” conferred, the competing interests and the benefits derived from the agricultural, energy, domestic and environmental sectors will have to be balanced against each other.  In balancing the “public benefit” factors such as preemption, Home Rule and the difference between withdrawal and consumption of water will also be of major importance.

 

In a state committed to environmental protection, energy development, agricultural production and growth, balancing the demand for water resources among those interests have and will continue to require the courts to evaluate and decide which “beneficial use” provides the greatest “public benefit.”

 

Topics:  Environmental Claims, Environmental Policies, Fracking, Water, Water Rights

Published In: Agriculture Updates, Constitutional Law Updates, Energy & Utilities Updates, Environmental Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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