Sneaky Taking Via Public Trust
Submitted by Aguanomics Blog
Stuart L. Somach, a lawyer whose firm has many irrigation districts, a few cities and no environmental groups as clients, attacks [PDF] the stealth methods of taking water in AG Brown’s “clarification” of Public Trust.
He begins with a useful fact:
In California, groundwater is generally not regulated through a statewide system of allocation. Common-law concepts govern the allocation of groundwater with some groundwater basins within California operating under management rules established through court adjudications or basin-specific legislation or through groundwater management plans or local ordinances. Moreover, a legal fiction exists that denies the physical connection between surface water and groundwater.
He then points out where the AG oversteps the law:
The basic concepts articulated within the Attorney General’s Reallocation Letter, including the reasonable use doctrine and the public trust doctrine, clearly are part of the law and are without dispute. What is disputable, however, are the leaps in logic that are employed in order to justify ignoring the prior rights to water in the zeal to reallocate that water to environmental purposes without paying for it.
[snip]
The Reallocation Letter also, with absolutely no authority, states that “it is possible that water users contributing to the harm to trust resources could be assessed a fee, to be used to purchase water or to restore habitat or to take other measures … where those actions would be effective to offset the harm that they are doing to trust resources, in other words they will contribute money.” (Reallocation Letter at p. 16, emphasis in original.) This gratuitous statement is apparently made in support of the Delta Vision proposal to assess fees against all the diversions of water in California. Apparently there is some thought that these diversion fees obtained from water users, including those who hold senior water rights, could be utilized to purchase the very water upon which the fees are being assessed.
He then concludes with:
Now is not the time to chart new social policy by ignoring private property rights in water in order to address problems in the Delta. Instead, one should fully utilize the existing system of water rights, recognizing property rights, and allow that system along with the water markets engendered by that system to work as intended to address the scarcity of water and the need to reallocate it to meet Delta needs.
Gee, before I read this, I thought that lawyers argued with only truth and evidence. Now I know that they are just like economists (arguing the opinions of their clients with selective use of facts) — just without the fancy math.
Bottom Line: Protect property rights and facilitate water sales. (Money flows one way, water the other.)
hattip to the Coastal Shark
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